New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 174593

N.Y.S Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Dates of Hearing: July 30, 2018

March 6, 2019

Record Close Date: April 30, 2019

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 30, 2018

Esq. Attorney Associated with the, P.C., Attorneys for Parent Representative for New York City

Department of Education and Department of Education

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 6, 2019

Father of Student, Esq. Attorney Associated with the, P.C., Attorneys for Parent Educational Director of Representative for New York City Parent

Department of Education and Department of Education The Matter of ., (hereinafter referred to as “Student’’), came before me for determination, in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1412 et seq., first on July 30, 2018, for the purpose of determining the Pendency program to which Student would be entitled to receive pending the completion of this administrative hearing, and thereafter on March 6, 2019 for a determination on the merits. After the close of testimony on March 6, 2018, both parties requested the opportunity to submit Post-Hearing briefs for my consideration. Those requests were granted as long as such were submitted to the Impartial Hearing Office no later than the Close of Business on April 4, 2019. Due to a delay in the parties’ receipt of the Transcript of the March 6, 2019 hearing, that date was extended to April 30, 2019. Parent’s counsel timely submitted Parent’s Closing Brief (.H.O. Exhibit I) and such was reviewed and considered. District did not submit any document for review.

The undersigned was appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over this matter by notice dated July 5, 2018. The Record Close Date was April 30, 2019.

The proceeding was initiated by correspondence filed on behalf of Parent by the Law Office of , P.C., dated July 2, 2018 and received by the New York City Department of Education’s Impartial Hearing Office on that date. The Due Process Complaint (Exhibit A) alleged that District failed to provide Student with a free, appropriate public education (FAPE) for the 2018-2019 school year, in that it had failed to offer a sitespecific school placement to Student for the 2018-2019 school year. Parent seeks reimbursement or direct payment of costs incurred by Parent for Parent’s unilateral placement of Student at for the 2018-2019 school year.

Student is presently of age, having been born on . However, at the commencement of the 2018-2019 school year, Student was old. Student has been classified as having Autism. District’s Committee on Special Education (C.S.E.) convened on June 6, 2018 and developed Student’s Individualized Education Program (1.E.P.) for the 2018-2019 school year (Exhibit B). That [.E.P. noted that Student’s global developmental delays negatively impacted Student’s learning and activity participation and that Student’s underdeveloped socialization and communication skills compromised the nature and quality of Student’s social interactions. It noted that Student required a highly structured small class with speech and language therapy, physical therapy and occupational therapy. Student’s instructional level was noted to be at the Kindergarten Level in both Reading and Math. It was the recommendation of the Committee that Student receive his special education program in a New York State Approved Non-Public School. However, as conceded by District Representative , a placement was never offered to Student for the 2018-2019 school year (T.R.19).

It has been established that Boards of Education may be required to pay for 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 Parent who had unilaterally placed their disabled child in a private facility. (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, 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 agency 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]). In both decisions, the Court noted that:

“Parents who unilaterally place a student in a private educational facility ... do so at their own financial risk” (see 471 U.S. 359 at 373)

Further pronouncements made thereafter 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) and even to retrospective tuition payment (Mr. and Mrs. A. v. New York City Department_of Education, Civ. 09-5097 (S.D.N.Y. 2011). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Burden 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, 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 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 facility, Parent’s 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 Parent.

DISCUSSION

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

As noted, District bears the burden of establishing that it offered Student a free, appropriate public education (N.Y.S. Education Law §4404(1)(c). However, in this instance, District offered no witnesses, and offered no exhibits into evidence. Moreover, the District Representative conducted no cross-examination of either witness presented by Parent.

Although District conceded that it had offered Student no placement for the 2018-2019 school year, it refused to concede that it had failed to offer Student a free, appropriate public education. Nevertheless, it is my finding and determination that District has failed in its obligation to bear the burden of establishing that it had offered Student a free, appropriate public education for the 2018-2019 school year.

Having found that District has failed in its burden, it is necessary that I determine the appropriateness of Parent’s unilateral placement of Student at . Parent bears the burden of establishing the appropriateness of such placement (N.Y.S Education Law §4404-1(c)). The standard for determining whether such burden has been successfully borne was enunciated by the Court in Frank G v. Arlington Cent. Sch. Dist., 459 F.3d 364 (2d Cir. 2007, wherein it was stated that:

“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 to 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.”

Parent presented, in support of his position, the testimony of Witness , the Educational Director of . Witness testified that she is a Board-Certified Behavioral Analyst (BABC) and has served at the School for fifteen years and in her current position for ten years. Witness described as a private school solely addressing the needs of children with Autism between the ages of six to fourteen (T.R.27). Her position at the School requires her to oversee all of the educational programs of the students and provide any behavioral interventions required (T.R. 25). The School has a total enrollment of twenty-one students, who are instructed in classes containing six students (T.R. 25-26). Each class has a Master-Level Certified Teacher and three Teacher Assistants. The School operates from 9:00 a.m. to 3:00 p.m. Monday through Thursday and from 9:00 a.m. to 1:10 p.m. on Friday (T.R.30). Children are assessed three time per year, utilizing ABLLS (Assessment of Basic Language and Learning Skills). The School also provides various therapies by certified therapists. In addition to herself, Witness testified that the School has three BCBA’s, who provide assistance to the teaching staff and evaluate the data collected by them (T.R. 33).

Witness appeared quite familiar with Student and his levels of ability (T.R.44-45).

Witness expressed the opinion that the program being afforded to Student by the School met all of Student’s needs — his social needs; his academic needs and his behavioral needs (T.R.52).

Parent also provided testimony — albeit minimally - that Student making progress in Student’s present placement Student (T.R.59).

In reviewing the testimony of Witness , I find that the program afforded to Student by during the 2018-2019 school year was reasonably calculated to provide Student with educational instruction specially designed to meet Student’s unique needs.

Thus, it is my finding and determination that Parent has successfully bourn his burden of establishing the appropriateness of Parent’s unilaterally-selected placement.

Having made such determination, it is necessary, in accord with the prerequisites established by the Supreme Court of the United States in Burlington, that I consider whether equitable considerations favor an award of reimbursement to Parent or direct payment to for the costs necessitated by the unilateral placement of Student at such institution for the 2018-2019 school year. How is that determination to be made?

Parent, in Parent’s Closing Brief (I.H.O. Exhibit I), states:

“The third criterion for an award of tuition reimbursement (as to which the DOE has the burden of production and persuasion) is whether equitable considerations support the Parent’s claim (citations omitted). Parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons (citations omitted)”.

If Parent is correct in asserting that District has the burden of production and persuasion on the issue of equitable considerations, Parent must prevail, inasmuch as District never addressed such issue, as is evidenced by the fact that District Representative called no witnesses nor cross-examined any witness presented by Parent. Thus, it is clear that District, if such was its burden, failed to support that burden by either production or persuasion.

It also appears that the Office of State Review concurs with Parent as to District’s burden of proof. After its review of the issue of equitable consideration in Application of aSTUDENT WITH A DISABILITY, Appeal No. 19-002, it followed its review by noting that: “ The burden of proof is on the school district during an impartial hearing, except that a parent seeking reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ

Las §4404[1][c]

However, as is correctly set out in Parent’s Closing Brief (ILH.O. Exhibit I), and as was recently noted by the State Review Office in Application of aSTUDENT WITH A DISABILITY, Appeal No. 19-002, equitable considerations are relevant to fashioning relief under the IDEA; and that Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriateness and reasonable level of reimbursement; and that total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.

I find and determine that, in light of the above, it is the court — and in these administrative hearings, the Impartial Hearing Officer - who has the obligation to consider — and must consider - all relevant factors and to determine the appropriateness and reasonable level of reimbursement, even if neither party has fulfilled any purported ‘burden of proof”.

The evidence before me in this proceeding established that Parent entered into a Contract with on April 6, 2018 for Student’s unilateral placement at such facility on April 6, 2018 (Exhibit C) - the day before District’s Committee had convened to prepare Student’s LE.P. for the 2018-2019 school year (Exhibit B).

The Contract (Exhibit C) required that Parent pay to , the sum of Eighteen Thousand ($18,000.00) Dollars for its Summer Program, which ran from July 2, 2018 to August 13, 2018, a period of six weeks, which I compute to be at the rate of Three Thousand ($3,000.00 ) Dollars per week; and the sum One Hundred Twenty ($120,000.00)

Dollars for its ten-month program, which ran from September 5, 2018 to June 26, 2019, a total of forty weeks, which I compute to be at the same rate of Three Thousand ($3,000.00) Dollars per week. for a total of One Hundred Thirty-Eight Thousand ($138,000.00) Dollars.

Clearly Parent did not have the wherewithal to make such commitment to , aS Parent testified that he earned a total of in both 2017 (Exhibit M) and 2018 (N), and is . A careful review of the provisions of the Contract between Parent and makes it clear that was focused upon it obtaining full payment from the New York City Department of Education. The Contract required that Parent to cooperate with the Committee on Special Education (C.S.E.); to view all placement offers; to file a Due process Complaint; and to seek Pendency. Once done, Parent was to be relieved of all obligation until the conclusion of the Due Process proceeding (Exhibit C). I find such Contract to have in no way obligated Parent to make any payment to , as knew that Parent was incapable to doing so. I find the Contact to be specious and unenforceable.

I also find the cost of Student’s program at to be excessive and unreasonable. While the program as described by Witness was sufficient to provide Student with an appropriate program, I cannot accept that the amount sought by bears any relevance to that program. Rather, it appears to me that such institution simply sought to take advantage by asserting a tuition that bore little, if any, relation, to the cost of providing such program.

I shall, therefore, reduce the amount that shall receive from the New York City Department of Education to one-half of the amount purported claimed. Thus, while still retaining reservation as to the proper amount to which is truly entitled to receive, I shall direct that the New York City Department of Education pay to the sum of Sixty-Nine Thousand ($69,000) Dollars for Student’s attendance at such facility during the 2018-2019 school year.

Parent has also sought in this proceeding an Order requiring the Department of Education to fund independent Speech/Language, Occupational Therapy and Physical Therapy evaluations upon the allegation contained in Parent’s Due Process Complaint (Exhibit A) that:

“TStudent]’s cognitive, academic, fine-motor, gross-motor, speech, language, communication and Activities of Daily Living (“ADL”) skills have not been assessed for years.” Such Complaint is not verified, nor is there any testimony before me to establish the veracity of such statement. However, notwithstanding any proper basis for such allegation and assuming such to be the fact, Parent’s request must be denied. The provisions regarding a parent’s entitlement to Independent Educational Evaluations (IEE)’s are set forth in Commissioner’s Regulations (8 NYCRR §200.5(g). Such provisions relate to an evaluation with which a parent disagrees. Parent, at best, is alleging that District failed to perform mandated triennial evaluations. I find that it is improper for Parent to assert a claim for such in a Due Process proceeding or to assert that, as District did not follow such Regulations as pertain to a disagreement with a previously-conducted evaluation by District and commence its own Due Process proceeding, Parent somehow becomes entitled to an Order permitting ‘...Parent to obtain such evaluations by providers of Parent’s choice at market rates” (Exhibit A). The request for such is denied.

I will, however, remind District of its obligation to assess and evaluate Student at least every three years and, if it has not done so, to immediately arrange for such evaluations as are required.

ORDER

Based upon the above review, it is HEREBY ORDERED that and the New York City Department of Education shall pay to the sum of Sixty-Nine Thousand ($69,000.00) Dollars as and for Student’s attendance at such institution during the 2018-2019 school year; and it is FURTHER ORDERED that Parent’s request for an Order requiring District and the New York City Department of Education to fund certain evaluations be, and the same hereby is, DENIED.

Dated: May 8, 2019 Games P. Walsh

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO RECORD JULY 30, 2018

17. No:: # of Pages Description: Offered by: Parent’s Due Process Complaint Notice, Parent dated 7-17-18 Findings of Fact and Decision of Impartial Parent Hearing Officer J. Farago, dated 11-2-17 DOE

DOCUMENTATION ENTERED INTO RECORD MARCH 6, 2019

3. No:: # of Pages Description: Offered by: Enrollment Agreement with for Parent 2018-2019 school year, dated 6-5-18 Confidential Psychoeducational Report, dated Parent 9-13-18, by N.Y.S Certified School Psychologist, M.S. Ed. Prior Written Report (Notice of Recommendation), Parent dated 6-18-18 Report of Student’ Attendance for the 2018-2019 Parent School Year at Student’s Daily Schedule for the 2018-2019 Parent School Year at Affidavit by, Billing Supervisor at Parent, sworn to on 8-30-18 DOE

3. Progress Report, dated 11/2018, by, leacher at Parent DOE

4. Speech/Language Therapy Progress Report, dated 11/2018, Parent DOE by. Speech/Language Therapist, MA, CCC-SLP TSSLD at

2. Physical Therapy Progress Report, dated 11-13-18, by Parent Physical Therapist, PT at DOE

1. Occupational Therapy Progress Note, dated 11/2018 by Parent, MS, OTR/L at DOE

2. Parents’ Federal Income Tax Report for 2017 Parent oZz ~~ 2 1 4 Parents’ Federal Income Tax Report for Program Description of 2018 10-day Notice to District from Parent’s counsel, dated Parent Parent Parent 6-18-18 OTHER DOCUMENTATION ENTERED INTO RECORD No.: #of Pages Description: Offered by: DOE

I. Parent’s Closing Brief, dated 4/29/19 THO 18 pages Parents

I. 2 Parent’s Request to Submit Document Into IHO Evidence — with DOE Consent, dated 4-29-19