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: June 25, 2015

July 7, 2015

September 17, 2015

Actual Record Closed Date: October 19, 2015

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 25, 2015

Attorney — Parents

via Chairperson’s Designee, CSE, — DOE

telephone — District

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 7, 2015

Attorney — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 17, 2015

Attorney — Parents

Representative Father — Parents

via School Director for — Parents

telephone

via Advocate — Parents

telephone

Chairperson’s Designee, CSE, District — DOE

On March 19, 2015 I was designated by the New York City Department of Education ("DOE") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of (hereinafter "the student")

and the parents through their attorney who initiated this hearing on March 18, 2015. A Pre-hearing conference was conducted on June 25, 2015, and on July 7, 2015, the hearing was commenced and on September 17, 2015, the hearing concluded. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter.

Accordingly the requests for extensions of the compliance dates were granted. The last compliance date was extended as a result of the request for post-hearing submissions. The parent’s representative submitted his post hearing closing statement on October 19, 2015.

The district representative declined to submit a post-hearing statement. The current record close date is October 19, 2015 and the compliance date for issuing a decision is November 2, 2015. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

The parents alleged that the Dept. of Education failed to provide a free and appropriate public education ("FAPE") for the 2013-2014 school year. The parents alleged that the DOE failed to provide a free and appropriate public education ("FAPE")

for the 2013-2014 school year and seeks direct funding for their unilateral placement at the (" "), a non-New York State approved program. The parents asserted that FAPE was not provided because the February 26, 2016 Individualized Education Program ("IEP") mandated instruction and no instruction placement was offered to the parent for the 2013-2014 school year. This assertion was not contested (trans. 100). The parent brought the hearing seeking direct payment to for portion of the program the 2013-2014 school year. The tuition for for the 2013-2014 school year was (Exhs C) and the parents maintained the of the education were devoted to education (trans 73).

The student is years old and was diagnosed on the and

"

" (Exh. A at 1). The CSE developed

an IEP on February 26, 2013, and recommended a program in a in a with a staffing ratio of or students with teacher and . The CSE further recommended instruction in and related services of and (" ") times per week,

(" ") times a week, a week

and a (Exh. A at 2).

The student’s daily schedule for the 2013-2014 school year consists of at ; : at ; at .; , , , at ; , , , at

.; , , , at

, , ,

.; at .; at

; , , at ;

, at ; at ;

, at ; , , at and (Exh. K).

On January 2014, the teacher reported that the student was with skills and continued to and was able to (Exh. J at 1). The teacher noted that (Id.). The teacher noted that the student's profile included the ability to and improve his skills (Id.). The teacher noted that the student's was working on and that the student could and and in the student was not yet and continued to and could , and (Exh. J at 2).

On February 2014, Dr. reported that the student was "

, ,

. Over the past year, the mother reported that has been occurring. Teachers as well as this examiner are able to recognize these

, and

"(Exh. F at 1).

On February 2014, the provider noted the student's

, and the student required

and was " , including

, yet he

(Exh. G at 1).

On February 2014, the provider noted that the student continued "

" (Exh.

H at 1).

On February 2014, the provider noted the student was " " and had and deficits and that the student used his

(" ") to and required (Exh. I at 1).

THE DEPT. OF EDUCATION’S CASE

The District’s case was presented in the testimony of the CSE District representative who conceded that the District failed to provide a FAPE for the student and conceded the first prong of the Burlington test for reimbursement (trans. 23)

THE PARENTS' CASE

The student's caretaker, the father, the advocate and the School Director of , testified in support of the parents' claim for direct payment for the unilateral placement of the student at . The parents are seeking approximately of the tuition for the academic year 2013-2014.

The School Director, a holder of a Master's degree in special education with a NYS certification in both special and regular education, testified that was a school with a teacher to student ratio to focus on , and (trans 33). She described the student as a with

" , and ,

, ... ... ...

" (trans.

47). She stated that there was a with the student and during (trans. 52). She stressed that the student was placed in a class with children including the student in a class with and the . She opined that because of the student to staff ratio of the student was (trans. 53). She stressed that as the student was so used and and that the Student knew (trans. 64).

On cross the School Director stated that the student received months of instruction from during the 2013-2014 school year (trans. 80). She stressed that she was familiar with the and that she provided the with a list of the student's goals and progress reports and noted that the student did not regress in his and (trans. 82). She acknowledged that she observed a , during the 2013-2014 school year (trans. 86), in addition to the report (Exh. F)

from Dr. , who provided to the student during the 2013-2014 school year (trans. 88). She stated that the had signed a tuition contract for the 2013- 2014 year at the request of the parent and the parent did not pay the tuition (trans. 95;69).

She maintained that regardless of the parents' ability to pay the tuition she considered the tuition under the (trans. 69). She could not explain how

(Id).

The caretaker testified as to the educational history of student. She stated that he attended a school for children at , until the student (trans. 121). She explained that the student attended during the summer of 2013 because and (trans. 126). She stated that the under the supervision of the student's teacher and that the was an program for special education students during the summer of 2013, and after the student attended so there was no loss in skills acquistion (trans.

124,127). She stated that she signed the contract (Exh. C) as she was the of the student at the request of the parent (trans. 132). She stated that she and the parent were responsible to pay the tuition (trans. 134). She stated that the student and that the student progressed in his in his ability to and and the student's progress depended on

(trans. 136).

The parent stated that with his son was placed with the who was able to (trans. 145). He stated that his son received per month and he to the and that the signed the contract at his request (trans. 147). He stated that he considered the tuition for the 2013- 2014 school year was debt and that he was not able to pay the tuition at for the 2013-2014 school year and that this was a debt that he was responsible to pay (trans 148).

He stated the he would have considered a placement in a public school if a program was appropriate (trans. 150).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c]. The District representative conceded that the student was not offered an appropriate program for the 2013-2014 school year and conceded the first prong of the three-prong Burlington/Carter analysis.

The parent has the burden of proving that the unilateral placement was appropriate. The parent bears the burden of proof with regard to the appropriateness of the services selected for the student during the 2013-2014 school year. (Application of a Child with a Disability, Appeal No. 02-93; Application of a Child with a Disability, Appeal No. 02-92). In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs.

(Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No.

02-080). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Florence County Sch. Dist. Four

v. Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, nor have its own IEP for the student. (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides "educational instruction specifically designed to meet the unique needs of the handicapped child." (Gagliardo v. Arlington

Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]).

To meet the second prong, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education needs. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities (Carter, 510 U.S. at 10). The student need not be the least restrictive environment (Frank G, 459 F. 3d at 364). "Ultimately the issue turns on whether a placement…is 'reasonably calculated to enable the child to receive educational benefits.' [internal citations omitted] …"(Frank G, 459 F. 3d at 130). Parents 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. (Id. at

364-365). (See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir.

2007).

I find that there was no evidence presented by the parent to establish how met the unique needs of the student for . I find it was uncontested that the student required a program. Testimony as to the student's program over the summer of 2013 established that a special education certified teacher from , who knew the student, provided and during the course of the summer of 2013 (trans. 76). The witness asserted that there was only a program at even if the student required a program (trans. 77). The SRO had held the a -program is not sufficient if the student required a program in Application of the New York City Dept. of Educ., Appeal No. 11-057. The parents' representative argued that there was interaction with the and the staff and that the witness testified that the goals and the progress reports from the prior year were sent to the and that worked with the and that the witness observed no regression in or (Exh. IV at 6). I find the testimony of the witness insufficient to establish the appropriateness of the . I find there was no testimony from the supervisor of the as to the amount of supervision provided to the staff at the and no testimony to establish the qualifications of teachers of the . I find there was no documentation whatsoever regarding the submitted. I find the progress reports submitted (Exhs. F to J) concerned the school year at . Accordingly, I find the parents failed to establish the appropriateness of the and I find the parents failed to establish the student received an appropriate program. Further, parents must prove that the chosen placement provides educational instruction 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 105 (2d Cir. 2007). The parents have not met this burden in the instant matter, where they have placed their child at . The testimony of the parents' witness from did not establish that the student’s program was tailored to the student’s unique special education needs especially in light of his various needs to reduce his , , , and and (Exhs. J at 1, F at 1, G at 1, H

at 1, I at 1).

The district representative argued that the parents have failed to show that the program is likely to produce progress, not regression (trans. 157). I find that the witness was unable to describe a research based pedagogical program or describe methods of adequate training of teachers which could provide an appropriate special education for the student across all disciplines. The parents failed to offer any testimony at all as to how can adequately educate the student with the amount of regression noted in Dr. 's report.

I find there was no testimony to establish that if a

(" ") or a (" ") were developed to address the student’s . Regulations of the Commission of Education require that an be completed for a child "whose behavior impedes his learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities." (8 NYCRR 200.4(b) (1)[v]) This requirement does not apply to private school; however, there was no evidence to indicate that the student’s was addressed during the 2013-2014 school year by and and (Exh. J at 1). Moreover, I find there was inconsistent testimony to as the student’s , and progress.

Based on the foregoing, I find that that the parents have not met their burden regarding the unilateral placement of the student at for the 2013-2014 school year.

Having found that the parent’s is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the parent’s position.

The district representative argued that the caretaker cannot assert a claim for relief on behalf of , and the caretaker lacks standing under the IDEA to maintain a claim against the DOE. I do not credit the testimony of the witness that the tuition for the 2013-2014 school year was a debt. There was no evidence of a policy of collection, only a recourse to a (trans. 69-70). I do not credit the parent's testimony that he considered the tuition for the 2013-2014 school year was a debt.

Based on the foregoing I deny the parents' request for direct payment for the portion of the tuition at for the 2013-2014 school year.

Dated: October 22, 2015

LINDA AGOSTON, 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 THE RECORD ON JUNE 25, 2015

I Decision on Extension, 6/1/15, 1 p. IHO

II Decision on Extension, 6/25/15, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 7, 2015

III Decision on extension, 7/7/15, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 17, 2015

I Decision on Extension, 6/1/15, 1 p. IHO

II Decision on Extension, 6/25/15, 1 p. IHO

III Decision on Extension, 7/7/15, 1 p. IHO

IV Decision on Extension, 8/13/15, 1 p. IHO

V Decision on Extension, 9/17/15, 1 p. IHO

A Impartial hearing request, 3/15/15, 4 pp. Parent

B Ten Day Letter, 9/20/15, 2 pp. Parent

C Tuition Contract, 9/3/13, 2 pp. Parent

D Attendance record, 8/20/14, 1 p. Parent

E DPR, 3/25/15, 3 pp. Parent

F Report card, 2/14, 1 p. Parent

G report, 2/4/14, 1 p. Parent

H report, 2/14, 1 p. Parent

I report, undated, 3 pp. Parent

J Teacher's report, 1/14, 2 pp. Parent

K Daily schedule, 2013/2014, 1 p. Parent

POST HEARING SUBMISSION

IV Mr. ’s Closing Statement, 10/19/15, 10 IHO

pp.