New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 157273

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 25, 2015

January 19, 2016

Actual Record Closed Date: February 1, 2016

Hearing Officer: Craig Tessler, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2015

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2016

Attorney — Student

Law Graduate — Student

Parents

(Via Telephone) — Student

DOE Representative, — DOE

I. INTRODUCTION

On September 8, 2015, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on September 25, 2015 and January 19, 2016. Hearing sessions scheduled for November 9 and December 18, 2015 were adjourned at the parties’ request.

Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at the parent’s request on October 30, 2015 for , at both parties’ request on December 17, 2015, to allow more time for settlement negotiations, and on January 19, 2016, to allow for receipt of the transcript of the January 19, 2016 hearing. Before granting the extension requests, I determined that the child was attending a school program, that granting them would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension requests were not based on school vacations, or scheduling conflicts of the parties or their representatives.

II. BACKGROUND

is an student classified with , who attends the (“ ”) Program, a non-public program not approved by the SED to provide education to students with disabilities. Classification is not disputed. On July 9, 2015, the CSE held a review and issued an IEP (Exh. E)

recommending a , including placement in a in a , per week for and per week for , (“ ”) per week for , per week for , times per year for , and .

On September 8, 2015, , Esq., attorney for ’s parent, requested the impartial hearing (Exh. C), alleging that the department of education did not offer FAPE for 2015/16 because of substantive deficiencies in the July 9, 2015 IEP, and failure to offer a school placement. The parent seeks department of education funding for ’s 2015/16 tuition at , including the cost of related services.

Upon the parent’s attorney’s request on September 25, 2015, I issued an order determining that is ’s “pendency” program, pending resolution of this matter, based upon a Findings of Fact and Decision dated July 14, 2013 (Exh. A).

III. THE CSE’S CASE

On January 19, 2016, the CSE representative stated on the record that the department of education failed to offer FAPE to for 2015/16 (T. 6). The department did not present any witnesses or offer any documents into evidence.

IV. THE PARENT’S CASE

, , testified (Tr. 14-57) that he

has a M.S. degree, certification in , and teaching experience; his duties include . He described as a , who require a and ; their classifications include , , , and . All teachers have . The admissions process includes review of the student’s file, communication with teachers and/or medical professionals and a classroom observation. develops an individualized plan for each student. During 2015/16, the program had students aged . Classes have a maximum size of , grouped according to age and ability; for , classes are , according to students’ .

, assist in , s

, and act as liaison among .

, and are available, and the program has a .

Related service providers lead a session. is

, and there are

, if appropriate. The program uses and

.

testified that has been a student for years; he frequently observes in class, speaks with teachers, service providers and regarding his , , and has regular telephone conversations and meetings with ’s parent. participated in the July 9,

2015 IEP meeting via telephone. He stated that the IEP goals are based on teacher input and progress reports, and that can implement the goals. has

, but has , ,

, and . , , has

, and . is in a class; the teacher has certification, and the assistant teacher has a B.A. and is enrolled in a M.S. program. Progress is measured by ; there are written progress reports for (Exh. G) and related services (Exh. H), which contain annual goals. The program addresses ’s

, and ,

. receives , and at ; has frequent communication with the service providers, and stated that has made some progress towards his goals. is a , but still needs ; he progressed from a , but is .

has , but requires ; he is at a , . stated that does not require a , and has not exhibited . testified about ’s Class Schedule (Exh. F). The program has a , and ; the subjects she teaches include . There is a

.

’s parent testified (Tr. 58-66) that she participated in the July 9, 2015 IEP meeting, and has always cooperated with the CSE; she never received a placement offer for 2015/16. Ms. has regular communication with ’s teachers about his and ; she stated that he has progressed in and , and benefits from , which addresses

. Ms. stated that is an appropriate program for , and provides him with all necessary services. Ms. signed the tuition contract on August 20, 2015 (Exh. D); tuition is , and related services cost . Ms. testified about her household income. During 2014 the household consisted of ; she earned about and her husband earned about

She is , and her household consists of

; during 2015, she earned about , and received

.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that ’s parent is entitled to department of education funding for ’s 2015/16 tuition at , because the department of education failed to offer FAPE, ’s parent has shown that is appropriate for , and equitable considerations support a tuition award.

A 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 FAPE (20 U.S.C. § 1400[d][1][A]; 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]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, 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 parents' 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]). 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]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). 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'" (Walczak, 142 F.3d at 130). 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).

The student's recommended program must also be provided in the LRE (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 Walczak, 142 F.3d at 132). 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 the Dep't of Educ., Appeal No. 07-

018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993)

("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that

(1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression.

Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v.

Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The

Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.

I find that ’s parent met the Carter requirements. The department of education admittedly did not offer FAPE for 2015/16. I find that is an appropriate program for , even though it is not a SED-approved program.

offers a

. ’s teachers have special

education certification, and there are frequent meetings among the teacher, service providers, and educational directors to discuss progress and any necessary program modifications. The program developed an individualized plan for . All mandated related services are provided. is in a class with students of similar needs and abilities. The program effectively addresses ’s . The record indicates that is progressing at . The program seemed reasonably calculated to ensure that benefits educationally and makes progress; it provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support an award of tuition. I find that ’s parent fully cooperated and communicated with the CSE, and that she made a timely hearing request. I find that the amount of reimbursement requested is reasonable.

Therefore, I conclude that ’s parent is entitled to tuition reimbursement. However, tuition funding must be limited to the amount paid for the part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that ’s curriculum does not preclude an award of tuition reimbursement. The record indicates that about of ’s school day is devoted to (Exh. F, T. 68); therefore the department shall fund of the cost of ’s tuition, plus the cost of related services.

The hearing request poses an additional issue: the parent argues that she is entitled to prospective tuition funding; i.e., that the Department of Education should directly pay tuition, notwithstanding the fact that Burlington and Carter are couched in terms of reimbursement. The parent’s position is based upon the premise that the substantive intent and purpose of the IDEA is to ensure that students with a disability have a free and appropriate public education, and this overrides the procedural requirements of IDEA and State law and Regulation, including the requirements that a special education program must meet the standards of the State Education Agency, that the New York State Education Commissioner must approve a private program to provide education to students with disabilities, and that the Commissioner must approve any contracts with private schools. Burlington, supra, appears to sanction the further step of prospective payment: “In a case where a court determines that a private placement desired by the parents was proper under the [IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”

In D.A. vs. N.Y.C. Dept of Education, 09-CIV-5097 (SDNY, 2/1/11), the Court held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents. In Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” (Id. 806) The Court also notes that it is “beyond cavil” that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v.

Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), held that the IDEA can compel a school district to disburse funds for the student’s tuition at a private school, and awarded a preliminary injunction ordering the district to “…make whatever financial arrangements are necessary…” to implement a hearing officer’s decision and place the student in anon-State-approved private school. See also

Susquenita School District v. Raelee, 96 F.3d 78 (3d Cir., 1996) in which the court ordered the school district to place a student at the non-approved private school and pay the tuition at the school pendente lite, until the appropriateness of the district’s recommended program was decided by the district court. The court rejected the district’s contention that Burlington prohibited prospective payment during litigation, and concluded that the policies underlying the IDEA and its administrative process favor imposing financial responsibility upon the local school district as soon as there has been an administrative panel or judicial decision establishing the pendent placement. The court stated that the purpose of the IDEA is not advanced by requiring parents who have succeeded in obtaining a ruling that a proposed IEP is inadequate to front the funds for continued private education. “The burden that such an approach would place on many families is overwhelming. The cost of private education, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means would be hard pressed to pay for private education…[t]he prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.” (Id. at 87))

I find the D. A., Connors and Sabatini decisions persuasive and conclude that the Department of Education may be required to directly or prospectively pay tuition to a non-approved private program after the Burlington/Carter tests are met, and the parent has shown by clear and convincing evidence that he or she cannot afford to pay tuition “up front.” In this case, the record indicates that the household income is not sufficient for the parent to afford the tuition, and I shall order that direct payment be made.

I have considered the parties’ other arguments, and find it not necessary to address them in light of the foregoing conclusions.

VI. ORDER

IT IS THEREFORE ORDERED THAT: the department of education shall fund

(a) of the 2015/16 tuition at , in the amount of , and (b) the cost of related services provided by , in the amount of .

Dated: February 16, 2016

MARTIN SCHIFF, ESQ.

Impartial Hearing Officer

CT:

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 IHO Findings of Fact and Decision, Case No. 143973, dated, July 24, 2013,

16 pages

B Omitted

C Request for Impartial Hearing dated September 8, 2015, 4 pages

D Enrollment – Tuition Contract 2015-2016, signed by parent

August 20, 2015, 2 pages

E IEP, dated July 9, 2015, 14 pages

F Class Schedule for , 2015-16, 1 page

G Annual Student Report: 2015-16 – , dated November 3,

2015, 5 pages

H Annual Student Report, 2015-16 – Related Services (

, and ), dated November 3, 2015, 6 pages