New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 157687

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 9, 2016

March 1, 2016

Actual Record Closed Date: March 11, 2016

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2016

Attorney — Student

Parent/Mother — Student

(Via Telephone) — Student

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2016

Attorney — Student

(Via Telephone) — Student

Chairperson's Designee — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a reimbursement case. A hearing took place on February 9, 2016, and March 1, 2016.

PARENT’S POSITION

In the Amended Complaint Notice, dated October 20, 2015 (EX. A), the Parent alleged that the District failed to offer the Student a free appropriate public education (“FAPE”) for the 2015-16 school year and is seeking tuition reimbursement for the private school where they unilaterally placed the student, payment for the cost of evaluations, reimbursement for the cost of related services and/or related services authorizations (“RSAs”) from September 2015-June 30, 2016, and costs and fees.

DISTRICT’S POSITION

During the hearing, the District conceded Prong I, but maintained the Parent was obligated to demonstrate that their unilateral placement is appropriate and that they were cooperative throughout the process.

STUDENT HISTORY

At the time of the hearing the Student was a boy with a documented history of including . (Ex. F-1) the Student has a disability classification of . (EX B) Overall the Student and his scores on place him in the (Ex. F-2) He has a relative strength in and it is reported that he has strengths in while his weaknesses were reported in .

are a concern. (Ex. F-2)

DISCUSSION

A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim.

Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington

v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985).

PRONG I

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. B oard of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); W alczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. A pplication of a Child With a Disability , (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. S traube v. Florida UFSD, 801 F.

Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F.

Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. A pplication of a Child Suspected of Having a Disability , Appeal No. 93-9; A pplication of a Child with a Handicapping Condition, Appeal No. 92-7; A pplication of a H andicapped Child, 22 Ed

Dept. Rep 487 (1983). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).

In this case, the District conceded Prong I, and consequently, I move to Prong II.

PRONG II

I now consider whether the Parent met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” S chreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp

529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They 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.”

Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd.

of Ed. of City Sch. Dist. of Y onkers, 231 F.3d 96, 105 [2d Cir. 2000] citing W arren G. v.

Cum berland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

The Parent bears the burden of proof with regard to the appropriateness of the educational program in which the Student was enrolled. (M.S., 231 F.3d at 104;

A pplication of a Child with a Disability , Appeal No. 02-027) In order to meet that burden, the Parent must show that the Private School offered an educational program that met the Student’s special education needs (Burlington, 471 U.S. at 370; A pplication of a Child with a Disability , Appeal No. 02-027). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining entitlement to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

In this case, the Parent argues that Private School is an appropriate placement.

They point to a evaluation’s findings to support this claim and characterize the Student’s needs as follows: He

,

, and , .

The Student’s is in the as measured by the . The Student’s scores on the ( ) showed that . The Student received scores of ranging from the to the on the ( ). The Student’s was in the ; the Student’s were in the ; the Student’s were in the and ; the Student’s was in the , his in was in the and in the for . On the ( ), the Student’s was within the for . The Student’s were with the . The Student’s were assessed using the

( ) and it was found that the Student has

, , and

. Based on the examiner’s observation, and reports from the Student’s mother and teacher, the Student ,

.(EX F) The made the following recommendations for the Student relating to school:

;

;

;

;

.

(EX F)

In a letter dated July 25, 2014, the wrote that it is his professional recommendation that the Student be placed in a , with , with . In addition, The Student should be in an

. (Ex. G)

Witnesses from the Private School further developed the record to particularize the “fit” of the Private School with the Student. The testified that average class size at the private school is students. (Tr. at 41-42). He testified that the Student receives services from the and . (Tr. at 53). The Student is

. (Tr. at 56).

He testifies that the Student is making progress. (Tr. at 57).

The Student’s teacher stated that the Student is enrolled in . All the Students in the class . (Tr. at 9). He said the Student benefits from and the teacher (Tr.

at 17). The Student been able to show . (Tr. at 17).

The teacher stated that there were students in the Student’s class and they are on the same level and have the same educational challenges. (Tr. at 62). He uses , as well as to teach the students. (Tr. at 62-63). He said that the

Student “

” due to these methods. (Tr. at 63). He is also . (Tr. at 63). He addresses the Student’s difficulties with with . (Tr. at 65). He also . (Tr. at 65). He also includes .

He testified that the Student’s has shown “

” (Tr. at 66). The teacher addresses the Student’s difficulty with by using and . (Tr.

at 67). For example, he

. (Tr. 67-68). He testified that the Student “

…” (Tr. at 68). The teacher

addresses the Student’s difficulty with through the use of the and he . He has noticed that the Student has shown an . (Tr. at 70). He addresses the Student’s difficulty with by . (Tr. at 70). He testifies that the Student has benefited from where to and . (Tr. at 71).

The Student’s Teacher testified that

,

, and . (Tr. at 83). She further testified

that “

” (Tr. at 85-86). She added that the environment is , which helps him to . (Tr. at 86). The Student’s difficulties with is addressed by and . (Tr. at 86). He also .

(Tr. at 87). She testified the Student has benefitted from . As an example, “ ” (Tr. at 88). She added that “ .” (Tr. at 92-93).

I find that the Parents have demonstrated that the Student has benefited from his placement in the Private School.

PRONG III

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim. Florence County Sch. Dist. Four v.

Carter, 510 U.S. 7 (1993), Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 (1985), R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71, see Gagliardo, 489 F.3d at 111, Cerra, 427 F.3d at 192. “Reimbursement merely requires [a district] 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, 20 U.S.C. §

1412(a)(10)(C)(ii), 34 CFR 300.148. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c), see R.E., 694 F.3d at 184-85, M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at 7 (S.D.N.Y. Aug. 27, 2010).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 612(a)(10)(C)(iii)(I), 34 C.F.R. §

300.148(d). This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. A m y N ., 358 F.3d 150, 160 (1st Cir. 2004).

On February 23, 2015, the Parent sent a letter to the CSE chairperson, informing her that the Private School required her to sign a contract and give a deposit for the 2015 – 2016 school year. She wrote that if the DOE recommended an appropriate program/placement, she would enroll the Student. If they did not, she would send the Student to the Private school and seek tuition reimbursement. (Ex. C)

On July 26, 2015, the Parent sent an email to a District regarding having received a letter from the CSE Chairperson requesting documents related to the Student. The

Parent wrote that as the May 20 2015 email from the Private School noted, she did not have access to any Private School records or personnel during the summer. (EX. D). On

August 12, 2015, the Parent participated in a CSE meeting for the Student. (Tr. at 33).

On August 25, 2015, the Parent sent a letter to the CSE Chairperson, stating that at the CSE meeting she disagreed with the recommendation. She wrote that she did not have a copy of the IEP or a school location letter, and could not ascertain whether the program would be appropriate. She gave notice that she would unilaterally place the Student in the Private School and seek tuition reimbursement. (EX. E) There is no evidence in the

Record that the District responded. I therefore find that the equities do not require any adjustment to the remedy in this case.

CONCLUSION

The District did not meet its burdens on Prong I and Prong II; there are no equitable considerations that weigh in favor of the District on Prong III.

It is therefore ORDERED

That the DOE pay, upon the presentation of proper invoices, for the reimbursement of tuition for the Private School (Including the cost of the ) from September 1, 2015, through June 30, 2016, including reimbursement of moneys paid to date and any payments made in the future. The

DOE will also pay for the cost of the evaluations, for reimbursement for the cost of related services and/or RSAs from September 1, 2015, through June 30, 2016, including reimbursements of moneys paid to date and any payments made in the future, upon the presentation of proper invoices for the same.

Dated: March 23, 2016

MARTIN J. KEHOE III, ESQ.

Impartial Hearing Officer MJK:

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 peri od.” (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 Impartial Hearing Request, 9/10/15