New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 157412

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 28, 2016

Actual Record Closed Date: February 22, 2016

Hearing Officer: James Walsh, Esq.

Correction

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 28, 2016

Esq. Attorney for Parents — Parents

Mother of Student — Parents

Teacher at (by phone) — Parents

(by phone) — Parents

Teacher at (by phone) — Parents

Teacher at (by phone) — Parents

District and New York City Department of Education Representative — DOE

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 (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York, on January 28, 2016 for the hearing on the merits of the case. By notification from the New York City Department of Education’s Impartial Hearing Office, dated September 10, 2015, I was appointed as the Impartial Hearing Officer having jurisdiction of this proceeding. Hearings had been scheduled for December 11, 2015 and again on January 14, 2016. However, both were adjourned. The Transcript of

Proceedings was received by me on February 22, 2016, whereupon the Record was

Closed.

This proceeding was commenced by Student’s Parents, by the filing of a Due Process Complaint Notice sent on Parents’ behalf by ,

, to the New York City Department of Education’s Impartial Hearing Office, dated September 10, 2015 and received by said Office on that date.

Parents allege in their Due Process Complaint (Exhibit A) that District and the New York City Department of Education failed to offer Student a free, appropriate public education (FAPE) for the 2015-2016 school year, on both procedural and substantive grounds, as a result of which Parents unilaterally placed Student in the for the 2015-2016 school year. Parents seek in this proceeding reimbursement for Parents’ unilateral placement of Student in the for the 2015-2016 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 the 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 I find is the appropriate criterion to be employed in determining whether the obligation imposed upon a party has been satisfied.

At the commencement of proceedings on January 28, 2016, District Representative advised that District and the New York City Department of Education were offering no exhibits into evidence and would call no witnesses to testify on behalf of the District or the New York City Department of Education, noting that the case had been submitted for settlement (T.R.9). Parents’ attorney stated that he had heard nothing regarding settlement until 3:00 p.m. of the preceding day and that Parents were prepared to proceed (T.R.9). I find, under such circumstances, that the District and the New York City Department of Education have defaulted in this proceeding and that such default results in the determination that District failed to sustain its burden of establishing that it provided Student with a free, appropriate public education for the 2015-2016

school year.

Having made such determination, it becomes necessary that I review the appropriateness of the unilaterally-selected placement of Student in the . As previously noted, Parents have the burden of establishing the appropriateness of such placement. As I have determined that the appropriate standard to judge the appropriateness of the program provided by the Department of Education to be one that is "reasonably calculated to provide some 'meaningful' benefit", I find and determine that it would be unfair and inequitable to impose a more stringent burden upon Parents. Thus, I shall employ the same standard and criterion upon Parents as I did upon District - that is, whether the program and placement unilaterally selected by Parents was "reasonably calculated to provide some 'meaningful' benefit".

Student is presently of age, having been born on . During the 2014-2015 school year, Student attended the (T.R.13). Parent expressed concern with Student’s (T.R. 17). Such concern was also echoed by Student’s then-teacher, as was noted in the Individualized Education Program (I.E.P) that District’s Committee on Special Education (C.S.E.) prepared on February 24, 2015 (Exhibit B). Other noted by the C.S.E. in that I.E.P. were that Student had

; ;

;

(Exhibit B). According to an Evaluation conducted on February 6, 2015 by (Exhibit C), Student had been previously evaluated in 2012 where, through the utilization of the ( ), it had been determined that Student , but . Student was diagnosed as having a and a . Student was assessed by Dr.

through the utilization of the

( ), which again disclosed . Significant were Student’s , but . It was reported that Student , . It was recommended by Dr. that Student be provided with and

(Exhibit C).

As previously stated, Parents unilaterally placed Student at for the 2015-2015 school year and specifically . Parents presented the testimony of . Witness testified that he is the

, and

. According to the testimony of Witness , the School offers a , with approximately , , (T.R.39). Witness testified that the was developed by when it sought to become a facility that could offer an appropriate program to students . Witness testified that

.

Parents also presented the testimony of Witness . Witness was Student’s during the 2015-2016 school year.

Testimony was provided by Witness regarding the particular manner in which the was presented and how it directly focused on

. The provides

, which the witness described as “ ” (T.R.77), in a class with students. During the , the would and, in Case No. 157412 the , Student would , with the . Witness (T.R.77). Witness was aware of Student’s progress and his (T.R.77-81 Parents presented the testimony of , and . All were teachers of Student at (“ ) during the 2015-2016 school year.

Witness was Student’s Teacher. She is also a

. Witness noted Student’s

and an (T.R26-27).

Witness explained how she had

. Student’s

has a total of students, (T.R.25). Witness noted that Student benefitted from ,

, and (T.R. 28-29).

Parents also offered the testimony of Witness . Witness advised that he is Student’s at . Student is in a class, which , where Student is in a class of students (T.R.99). According to the testimony of Witness , Student has benefitted from , which provides Student with (T.R.100). Witness also noted that Student had , , and (T.R.101).

According to Witness , Student has benefitted from the and from the (T.R.102).

It is clear from a review of the evidence and testimony received in this proceeding that the program unilaterally selected for Student not only was capable of - but, indeed provided – educational benefit. 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 for the 2015-2016 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 for the 2015-2016 school year. Parent had advised the District’s C.S.E., by letter dated January 31, 2015, that she was obtaining a Evaluation of Student and would provide the C.S.E. with a copy of such (Exhibit G) and, indeed, did so by letter dated February 19, 2015 (Exhibit D).

Further, by letter dated March 31, 2015, Parent advised Committee Chairperson of her intent to place Student at if an appropriate placement was not forthcoming, but expressed the Parents’ willingness to consider any appropriate program offered to Student in a timely manner (Exhibit F). The failure of District to meet its obligations to Student in offering an appropriate special education program for the 2015-2016 school year - which the District conceded that it had done - was the sole basis for the need for Parent to proceed with the 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 for the 2015-2016 school year.

Parent – as well as one – a person not otherwise identified - signed a Contract with for Student’s attendance at that facility, on March 4, 2015, which was accepted by the School on March 9, 2015 (Exhibit J). That

Contract required Parents to pay ( )

Dollars tuition, plus ( ) Dollars for the

, as well as a Fee of ( ) Dollars, and a

Fee of ( ) Dollars, for a total of

( ) Dollars. I find, however, that it is inappropriate to factor into the costs incurred by Parents in their unilateral placement of Student at of the Fee, which includes and , or the Fee, which, as described by Witness , is to - and that any amount unexpended is returned to parents (T.R.62-62). I therefore reduce the above amount by the sum of ( ) Dollars – leaving a balance of ( ) Dollars.

Parent has submitted proof of payment made to on March 9, 2015 in the amount of ( ) Dollars

(Exhibit H). There is no other proof of payment of the costs incurred by Parents for their unilateral placement of Student at the for the 2015-2016 school year in the Record before me, except for the sworn testimony of Parent that she had paid the tuition for for the 2015-2016 school year (T.R. 15). I find this lack of concise proof disturbing, but not fatal.

As Parents have prevailed on all issues presented in this proceeding, it is my finding and determination that Parents are entitled to reimbursement of the sum of ( ) Dollars. District and the New York City Department of Education shall pay such sum to Parents, but only after Parents provide to District and the New York City Department of Education a sworn statement from that all tuition incurred by Parents for their unilateral placement of Student at the for the 2015-2016 school year have been received by such School. In the event that it develops that the any portion of the tuition incurred by Parents for their unilateral placement of Student at the for the 2015-2016 school year remains unpaid, District and the New York City Department of Education shall pay to the full amount of such unpaid tuition and thereafter pay to Parents the difference between such amount and the amount herein determined to be due to Parents.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District and the New York City Department of

Education

Pay to Parents the sum of ( ) Dollars.

District and the New York City Department of Education, but only after Parents provide to District and the New York City Department of Education a sworn statement from that all tuition incurred by Parents for their unilateral placement of Student at the for the 2015-2016 school year have been received by such School. In the event that it develops that the any portion of the tuition incurred by Parents for their unilateral placement of Student at the for the 2015-2016 school year remains unpaid, District and the New York City Department of Education shall pay to the full amount of such unpaid tuition and thereafter pay to Parents the difference between such amount and the amount herein determined to be due to Parents.

Dated: March 3, 2016

Corrected: March 3, 2016 ( Correction made to date)

JAMES P. WALSH, ESQ.

Impartial Hearing Officer JW:

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 28, 2016

A. Impartial Hearing Request, dated 9-9-15 (6 pages; Parents)

B. Student’s I.E.P. as prepared by District’s C.S.E. on Parents 2-24-15 (9 pages; Parents)

C. Evaluation of Student by,, dated 2-6-15 (7 pages; Parents)

D. Letter from Parent to, dated 2-19-15 Parent (5 pages; Parents)

E. Letter from Parent to, dated 3-31-15 (1 page; Parents)

F. Letter from Parent to, dated 8-18-15 (4 pages; Parents)

G. Consent by Parent to Evaluate, dated 1-31-15 (1); USPS Delivery Information (2) (3 pages; Parents)

H. Copy of Parent’s, 1-1-15 to 11-11-15 (1 page; Parents)

I. Student’s Schedule at for Parents the 2015-2016School Year (1 page; Parents)

J. Contract between Parents and, dated 3-9-15 (4 pages; Parents)

K. Copy of Student’s Report Card for Second Quarter of 2015-2016 School Year (1 page; Parents)