New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 159860

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 17, 2016

Actual Record Closed Date: May 18, 2016

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2016

Esq. Attorney for Parents — Parents

Mother of Student — Parents

(by phone) — Parents

(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) on May 17, 2016 for the hearing on the merits of the case. I was appointed by notification from the New York City Department of Education’s Impartial Hearing Office, dated February 24, 2016, as the Impartial Hearing Officer having jurisdiction of this proceeding. A hearing had been scheduled for May 6, 2016 but was adjourned. As the hearing was somewhat brief, I have reviewed my notes, and the exhibits received in evidence quite specific, I have chosen to render this Decision without the benefit of the Transcript of Proceedings The Record was Closed on May 18, 2016

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 February 18, 2016 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 2014-2015 school year, as District’s Committee on Special Education (C.S.E.), had failed to prepare any Individualized Education Program (I.E.P.)

for Student for the 2014-02015 school year or offer Student any placement in which Student might receive any special education program. As a result, Parents unilaterally placed Student in the at for the 2014-2015

school year.

Parents seek in this proceeding reimbursement for the costs associated with Parents’ unilateral placement of Student in the at for the 2014-2015 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 -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. A free, appropriate public education 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 such requirement, i.e., that the program offered to Student 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.

The burden of initially establishing that a student has received a free, appropriate public education 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 for reimbursement 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 proffered program, I would then proceed to determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing the appropriateness of such program rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for Case No. 159860 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). However, at the commencement of proceedings on May 17, 2016, 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. I find, therefore, 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 2014-2015 school year.

Parent testified in this proceeding and described how, at the conclusion of Student’s public school program during the 2013-2014 school year, Parent had determined that Student was making insufficient progress in her then-current setting and determined that Student should attend the at for the coming school year. That decision was memorialized in an Email sent by Parent to the school Student had attended (Exhibit C).

Having found that District failed in its burden of establishing that it had offered Student a free, appropriate public education, it becomes necessary that I review the appropriateness of the unilaterally-selected placement of Student in the at . 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 that should have been provided to Student 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 would have placed 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 . However, when Student began attending in September of 2014, Student was old. As noted, Student had attended during the 2013-2014 school year and prior years. It was noted in the Individualized Education Program (I.E.P) that District’s Committee on Special Education (C.S.E.) had prepared for Student December 2, 2013 (Exhibit B) that Student had difficulty and . Also

noted by the C.S.E. in that I.E.P. were that Student had difficulty

; ;

. The I.E.P. (Exhibit B) also noted the results of a evaluation that had been conducted in August of 2013 which had reported that Student had . Emphasis was made in describing Student’s

, and

(Exhibit B).

As previously stated, Parents unilaterally placed Student at for the 2014-2015 school year and specifically in its . Parents presented an Affidavit made by (Exhibit D). In that Affidavit, sworn to on April 26, 2016, Affiant stated that he is the , and has been such since . According to the Affidavit of Affiant , the offers a curriculum to approximately students, with more than of those students, , enrolled in the (T.R.39). Affiant stated in his Affidavit that the was developed by when it sought to become a facility that could offer an appropriate program to students with . Affiant noted that all of the teachers in the were required to have certification in . The School maintains

, with classes having students or less. The Affiant also noted the School’s use of , described as

. It

was noted in his Affidavit that such program benefits students with and . I note that District Representative consented to the introduction into evidence of the

Affidavit. I further note that District Representative sought no opportunity to cross-examine regarding any allegation stated in the Affidavit.

Parents also presented the testimony of Witness . Witness was Student’s teacher during the 2014-2015 school year. Testimony was provided by Witness regarding the particular manner in which the Program was presented and how it directly focused on . Witness described how the provides its participants, including

Student, with

, which the witness described as “ ”, in a class with students. During the session, Student’s and, in the session, would

. Witness

also met with Student during the week, each for . Witness was aware of Student’s progress in and . Witness displayed awareness of Student’s and described how Student’s addressed those . It was the opinion of Witness that Student benefitted from her participation in the program.

Parents also presented the testimony of , who testified that she was Student’s Teacher during the 2014-2015 school year. Witness is also a certified Teacher. Witness noted that the program at the School

provided ,

. Witness described that Student was in the for , in which . Student’s Class had a total of students, . Witness noted that Student benefitted from the , from the , and from the (T.R. 28-29). Witness expressed her opinion that Student benefitted from her participation in the and in her attendance at

.

It is clear from a review of the evidence and testimony received in this proceeding that the program unilaterally selected for Student by her Parents provided educational benefit. It is my finding and determination, after a review of the testimony of the witnesses appearing in this proceeding and a review of the contents of the Affidavit of

Headmaster , that Parents have successfully borne the burden of establishing the appropriateness of their unilateral placement of Student in the at for the 2014-2015 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 at for the 2014-2015 school year. Parent had advised the District, by her email of August 12, 2014 (Exhibit C), that she was placing Student at for the upcoming school year. I found it significant that the reply to Parent from District “ “ that decision and acknowledged that that the 2013-2014 school year was a very difficult frustrating year and that Parents were ” (Exhibit C).

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 at for the 2014-2015 school year.

Parents signed a Contract with for Student’s attendance at that facility, dated August 10, 2014, which was accepted by the School on August 11, 2014 (Exhibit F). That Contract required Parents to pay

( ) Dollars tuition, plus

( ) Dollars for the , as well as of

( ) Dollars and a 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 , which includes , , and (Exhibit

D) or the , which, as described by Affiant , is to and that any amount unexpended is returned to parents. I therefore reduce the above amount by the sum of ( ) Dollars – leaving a balance of

( ) Dollars.

Parents have submitted proof of payment made to on various dates during the 2014-2015 year that total

( ) Dollars (Exhibit G). I have been unable to determine the discrepancy between the total paid by Parents and the total due under the full terms of the Contract.

As Parents have prevailed on all issues presented in this proceeding, it is my finding and determination that Parents are entitled to reimbursement in the sum of ( ) Dollars. District and the New York City Department of Education shall pay such sum 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 as and for reimbursement for Student’s attendance at for the 2014-2015 school year the sum of

( ) Dollars.

Dated: May 19, 2016

JAMES P. WALSH

Impartial Hearing Officer

JPW:

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 MAY 17, 2016

A. Impartial Hearing Request, dated 2-18-16 (6 pages; Parents)

B. Student’s I.E.P. as prepared by District’s C.S.E. on Parents 12-2-13 (8 pages; Parents)

C. Email from Parent to and from to Parent, dated 8-12-14 (1 page; Parents)

D. Affidavit by, sworn to on 4-26-16Parents (4 pages; Parents)

E. Due Process Response by District, dated 4-14-16 (3 pages; Parents)

F. Contract between Parents and, dated 8-11-14 (4 pages; Parents)

G. Affidavit by, Parent, sworn to on 5-5-16, regarding tuition payments made by Parents (1 page; Parents)