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 22, 2015

Actual Record Closed Date: January 25, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 22, 2015

Mother of Student — Parents

District and New York State Department of Education Representative — DOE

School Psychologist – Attended Various Committee on Special Education Meetings — DOE

Placement Officer for — DOE

The Matter of., (hereinafter referred to as “ ”) 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 22, 2015. The proceeding was commenced by Student’s Parent, by the filing of a Due Process Complaint Notice sent to the New York City Department of Education’s Impartial Hearing Office, dated November 22, 2014 and received by said Office on November 24, 2014. The undersigned was appointed by the Impartial Hearing Office to preside over this matter by notification dated November 25, 2014. A hearing was conducted on January 22, 2015. The Actual Record Close Date was January 25, 2015.

Parent’s Due Process Complaint, in the area in which the “Problem” is to be described, stated:

“My child is been having problem at this school its has not been the proper setting for him. ,

[Student] needs help on his academics.”

As Parent’s Statement of the “Proposed Solution”, Parent states:

I have seen about school from . These setting are not the proper setting for him. . I found a school that suit his needs.

(Exhibit 1)

. The Student whose educational program was reviewed in this proceeding is presently of age, having been born on . Student entered Public School # , located on sometime in 2011 (Exhibit 5). Student entered the at at the commencement of the 2011-2012 school year. During Student’s school year of 2012-2013,

Student was receiving his special education program in a in a having a staffing ratio of . On December 7, 2012, a Psycho-Educational Evaluation (Exhibit 4) was conducted as part of a Mandated Three Year Reevaluation. It is noted in the Report of that Psycho-Educational Evaluation that Student’s teacher for the prior school year, as well as Related Service providers, had expressed many concerns with Student’s current program.

The Psycho-Educational Evaluation included the administration of the

- ( ).

It was opined

that Student might experience

When

administered an assessment of Student’s

Student performed in Range, with a score

When Student’s abilities were evaluated through

Student performed in the Range, with a score of Student scored in the Range, with a

A / Progress Report completed on December 11, 2012 (Exhibit

5) noted that Student’s teacher had reported that Student had not made much progress.

Testing reveled that Student performed in the Range when his skills were evaluated through the use of the Student performance on that test indicated that Student received a score of

It was reported

that Student displayed

.

After the completion of the above-described assessments, District’s Committee on Special Education (C.S.E.), or a sub-Committee thereof, convened .on December 20, 2012. Present at that meeting and serving as both District Representative and School Psychologist was Ms. . Also present were Student’s then /

; Special Education Teacher ; Social Worker

and Parent. The Committee on that date prepared a detailed Individualized Education Program (I.E.P.) to be implemented on January 7, 2013 (Exhibit 6). After reviewing the results of Student’s evaluations, and academic achievements, the Committee noted that Student’s needs were such that not only did Student need continuing special education services, but that he was in need of further support, perhaps in a school (Exhibit 6). The Committee classified Student as having an and recommended that Student receive his special education program in a Class in a School having a staffing ratio of , together with the Related Services of per week per session, per week, per session, per week, per session, (Exhibit 6). The I.E.P. reflected

Parent’s concerns with possible placements being unacceptable to her, noting that Parent agreed that Student was in need of a more restrictive setting but was concerned with what there was available (Exhibit 6).

While, as noted, the I.E.P. contained an Implementation Date of January 7, 2013, it appears that no placement was offered Student until June of 2013, when a Final Notice of Recommendation was issued, offering Student placement in a Class in a (Exhibit 7). It appears that Student remained, during the period from January 7, 2013 until the issuance of the Final Notice of Recommendation, in his at . The Final Notice of Recommendation requested that Parent sign the Notice indicating her acceptance of the recommendation. The Notice further advised Parent that, if Parent wanted to discuss the Recommendation to discuss the placement or arrange for another meeting, Parent was to call. It further advised Parent that, if the District did not hear from Parent within ten days, the recommended services would be put in effect unless Parent requested another IEP meeting, mediation or an impartial hearing (Exhibit 7). However, from the testimony and the exhibits before me, it appears that Parent did none of the actions that would have forestalled Student’s placement in a – and yet, Student continued to receive his educational program, in his class at . Witness testified that, on April 20, 2013, Student’s I.E.P. was revised so as to provide for Student to receive provided for in Student’s I.E.P., as a school – i.e., a - does only . I note that such latter I.E.P. was not offered in evidence Student, beginning in September of 2013, continued to receive his special education program in a in a

- .

By letter dated December 2, 2013, Parent was advised that the Committee would meet on December 16, 2013 to conduct an Annual Review and develop a new Individualized Education Program for Student (Exhibit 9). Quixotically, such Notice states that: “The IEP Meeting must be held no later than 05/07/2013”. Regardless, the Committee convened on December 16, 2013. Again Witness presided as District Representative and School Psychologist. Also in attendance were Student’s Special Education Teacher ; his ; and

Counselor . Parent was not in attendance. An explanation as to why the Committee proceeded without Parent was offered by Witness . However, as such was not an issue raised in Parent’s Complaint, it need not be reviewed. The

Committee noted that Student was on the level - as opposed to his on a level noted I the I.E.P. of December 20, 2013 – and that his abilities were basically at the same level as the previous year. The Committee continued Student’s classification as having an and recommended that Student receive his special education program in a in a School having a staffing ratio of and with the same Related Services as in his previous I.E.P. (Exhibit 10). The I.E.P. contained an Implementation Date of January 2, 2014. A Final Notice of Recommendation was sent to Parent a week later – on December 23, 2013 – offering Student placement in a Class in a School –

(Exhibit 11). The Notice contained the same

requirements relative to acceptance or disagreement of Parent as have been previously noted in this Decision. While Parent testified that she had gone and viewed the proffered site – as well as other sites offered – but found all such proffers unacceptable – often because of the neighborhoods in which they were located – there is nothing before me to indicate that Parent forestalled the implementation of that placement offer within the period before such recommendation was put in effect.

However – again – it appears that District did not implement Student’s program as recommended. Student continued to attend his Class in a School –

– for the remainder of the 2013-2014 school year. Likewise, at the beginning of the 2014-2015 school year, Student returned to his program at and was provided his special education program in a . By letter dated December 1, 2014, Parent was advised that the Committee would again convene on December 15, 2014 to review Student’s I.E.P. and develop a new I.E.P. (Exhibit 12). The Committee consisted of School Psychologist serving as District Representative (but not as School Psychologist); Special Education Teacher ;

; and Counselor . It appears that Parent did not attend –

But Witness provided testimony explaining her absence. Again, as there has been raised no issue regarding the constitution of the Committee, I need not inquire as to the absence of Parent – nor of a Parent Member. The Committee again reiterated its recommendation that Student be classified as having an and be provided his special education program in a Class in a School having a staffing ratio of and with the same Related Services as were recommended in the previous I.E.P‘s (Exhibit 13). The Committee noted some advancement in Student’s and abilities, but found that Student’s needs could provide. By Notice to Parent dated January 12, 2015, the Recommendation was review3ed and a placement of a school at

(Exhibit 14).

At the hearing conducted on January 22, 2015, Parent appeared without counsel or a Parent Advocate. Parent was advised of her right to secure such assistance and the opportunity for an adjournment of proceedings to do so. Parent declined and indicated her desire to proceed without such assistance. Parent also clarified her Due Process Complaint to indicate that the relief Parent was seeking was an Order that would permit Parent to place Student at a , the name of which Parent was uncertain, but which appears to be the located in .

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 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 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 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]). The Court noted that parents who decide to unilaterally place their child do so at their own financial risk.

Further pronouncements 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), which is particularly germane to this proceeding, as it requires parents who seek prospective payment to come before the Court and establish their entitlement to such relief. However, in all of the decisions, including Connors, 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’s 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’s unilaterally-selected or unilaterally-desired 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 or unilaterally-desired facility, Parent’s request for relief must be denied. If the unilaterally-selected or unilaterally-desired 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 as would favor an award of prospective tuition rests upon District.

Parent, in her Due Process Complaint (Exhibit 1) alleged simply that Student was having problems at his school and that such was not the proper setting for him,

– and that Student needed help on his academics. His school, of course, is –which is a . District, through its actions, exhibits and testimony, clearly agrees with Parent – and has been recommending, since December of 2012 – that Student attend a different school – one that is capable of meeting Student’s needs. (See Exhibits 6, 10 and 13). In each, District’s C.S.E. has clearly stated that Student’s needs cannot be appropriately met in a in a . So, while Parent is correct that Student’s school is not the appropriate setting, it appears to be Parent’s own actions that have kept

Student at despite the Committee’s strong expression that such is an inappropriate placement for him. I do find it inexplicable that District continued to allow Student to return to his classroom at , school-year after school-year, clearly knowing that such placement was inappropriate to meet Student’s needs.

Parent, in her vigorous attempt to convey her deep concern for Student and his need for appropriate placement, constantly reiterated that Student had and that such was the . However, outside of her declaration that such was the basis for his academic failures, there is nothing in the Record before me to establish that such is the case. Indeed, the classification made by the Committee that Student has an is supported by the evaluations before it, as does the evidence before me in this proceeding. In the entire Record, the only possible reflection of is the comment contained in the / Progress Report of December 11, 2011, that noted that Student . Moreover, the Record is totally bereft of any evidence regarding the nature of the program that could be afforded by the to Student or whether such would, in any manner, be effective.

Thus, it is my finding and determination that District offered – and is offering – Student a free, appropriate public education, designed to meet the Student’s educational and social/emotional needs.

It is my further finding and determination that Parent has totally failed to establish the appropriateness of the which Parent seeks to have the District and the New York City Department of Education obligated to pay for, or that such could provide Student with a program that could address Student ’s needs.

Were it necessary, I would also find that Equitable Considerations do not favor an award to Parent of the relief she seeks. I find that Parent’s objection to the placements offered to Student in various schools located in the is without proper foundation and based solely on the quality of the neighborhoods in which those schools are located.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED.

Dated: February 3, 2015

.

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 JANUARY 22, 2015

1. Parent’s Due Process Complaint Notice, dated 11-22-14 (1 page; DOE)

2. Request for Consent to New Testing, dated 10-2-12; with Parent’s Consent, dated 11-14-12 (1 page; DOE)

3. Letter to Parent from C.S.E. regarding Schedule of DOE Reevaluation IEP Meeting of 12-20-12, dated 12-6-12 (3 pages; DOE)

4. Psycho-Educational Evaluation Report, dated 12-10-12, by (4 pages; DOE)

5. / Progress Report by, dated 12-11-12 (2 pages; DOE)

6. I.E.P. created by District’s C.S.E., dated 12-20-12 (10 pages; DOE)

7. Final Notice of Recommendation, dated 6-17-13 (1 page; DOE)

8. Detail Placement Inquiry Screen re: (1 page; DOE)

9. Notice to Parent of Scheduling I.E.P. Meeting, dated 12-2-13 (3 pages; DOE)

10. I.E.P. created by District’s C.S.E., dated 12-16-13 (15 pages; DOE)

11. Final Notice of Recommendation, dated 12-23-13 (1 page; DOE)

12. Notice to Parent of Meeting of District’s C.S.E., Scheduled for 12-15-13 (2 pages; DOE)

13. I.E.P. created by District’s C.S.E., dated 12-15-14 (12 pages; DOE)

14. Prior Written Notice, dated 1-12-15 (4 pages; DOE)

A. Parent’s Due Process Complaint Notice, dated Parent (3 pages; Parents)