New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 148392

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 10, 2015

December 4, 2015

Actual Record Closed Date: December 28, 2015

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2015

of Student — Parents

Esq. Attorney Associated with the, Attorneys for Parents — Parents

District and New York City Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 4, 2015

of Student — Parents

Esq. Attorney Associated with the, Attorneys for Parents — 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) was initiated by correspondence filed on behalf of Parent by the , dated October 28, 2013, and received by the New York City Department of Education’s Impartial Hearing Office on October 31, 2013. The thereafter filed an Amended Due Process Complaint, dated March 4, 2014, which Amendment was accepted by District on March 6, 2014. The Amended Due Process Complaint challenged the appropriateness of the recommended program prepared by District’s Committee on Special Education for Student for the 2012-2013 school year, alleging that the Committee failed to appropriately provide for Student’s special education needs. The Complaint sought reimbursement or funding for Parents’ unilateral placement of Student at ( ) for the 2012-2013 school year.

Thereafter, the undersigned was appointed, after the recusal by one or more previously appointed Impartial Hearing Officers, on March 6, 2014 as the Hearing Officer having jurisdiction of such matter. However, before any hearings on the issues raised by Parents could be scheduled or conducted, Parents filed another Due Process Complaint Notice, also by the , dated March 20, 2015 and received by the New York City Department of Education’s Impartial Hearing Office on March 23, 2015.

That Complaint (Exhibit A) challenged the appropriateness of the District’s Committee on Special Education’s recommended program for Student for the 2013-2014 school year and sought funding and/or reimbursement for Parents’ unilateral placement of Student at for the 2013-2014 school year. By Order dated March 23 2015, these two matters were consolidated (I.H.O. Exhibit I).

A Pre-Hearing Conference was conducted on June 30, 2015. Thereafter, a hearing was conducted on November 10, 2015, during which the parties proffered exhibits into evidence and made Opening Statements, and again on December 4, 2015, when the parties’ cases in chief were heard. At the conclusion of proceedings on December 4, 2015, the parties waived Closing Statements. Transcripts were received on December 28, 2015, at which time the Record was closed.

At the opening of the December 4, 2015 hearing, Parents withdrew their Due Process Complaint of March 14, 2014, which had sought reimbursement or direct funding of Student’s program at during the 2012-2013 school year. Thus, the only proceeding now before me is that commenced by Parents on March 20, 2015 (Exhibit A), which seeks reimbursement/direct payment of costs associated with Parents’ unilateral placement of Student at for the 2013-2014 school year.

Student was, at the time of the creation of the Individualized Education Program (I.E.P.) by District’s Committee on Special Education for the 2013-2014 school year on February 7, 2013 (Exhibit 1), of age, having been born on . An attempt to evaluate Student was made on January 22, 2013, through the use of the ( ). However, it was reported by the evaluator that , and . The Report indicates that Student’s were found to be in the Range. The administration of the was also attempted but . The results obtained indicated that Student’s were in the Range, with a , while Student’s were in the , with a . In Summary, the evaluator reported that and and scores , but that Student’s performance was consistent with Student’s previous diagnosis of . The Report contained the Recommendation that Student receive her special education program that was , and include and (Exhibit 2).

The Report (Exhibit 2) also contained information gleaned from Student’s mother that Student had attended during the 2011-2012 and 2012-2013 school years, but prior thereto had attended a school and .

According to the testimony of Student’s father, Student is currently attending a public school within the City of New York.

District’s Committee on Special Education convened on February 7, 2013 to conduct an Annual Review and prepare Student’s Individualized Education Program (I.E.P.) for the 2013-2014 school year. The I.E.P. that issued from that meeting classified Student as and recommended that Student receive her special education program in a in a having a staffing ratio of , on a , together with the Related Services of , per week, per session, ; and per week, per session, ; per week, per session, ; and , per week, per session, ; and per week, per session,

(Exhibit 1).

By document dated October 1, 2013, Student’s mother signed an Enrollment Contract (Exhibit F), in which she agreed to pay tuition and fees to for Student’s attendance at that facility during the 2013-2014 school year. Parents now seek an Order requiring District and the New York City Department of Education to reimburse Parents for monies expended by them for Student’s attendance at for the 2013-2014 school year and to pay directly to any monies still due to for Student’s attendance thereat during the 2013-2014 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 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 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 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. sand 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

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 Student a free, appropriate public education. The burden of establishing that it did so always rests upon the District (N.Y.S. Education Law§4404). Again, generally, 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 parent’s right to the requested relief must be denied. If it is determined that District fails to sustain its burden, 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. Further, 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. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement or, as here, other relief, rests upon District.

District placed into evidence the I.E.P. that District’s C.S.E. had prepared for Student for the 2013-2014 school year (Exhibit 1). As previously noted, that I.E.P.

described in detail Student’s , her and her . It appropriately classified Student as , provided for numerous Related Services, and recommended that Student be placed in an educational setting that had a staffing ratio of . The I.E.P. contained Annual Goals, as well as significant , in the areas of ;

; ; ;

; ; and . District provided Parents with placement in a particular class at a specific school in a timely manner. Yet, at the commencement of proceedings, District’s Representative announced that District conceded that it had failed to offer Student a free, appropriate, public education for the year in question. District called no witnesses to describe the manner in which Student’s educational program had been developed, nor did it offer any testimony regarding

District’s proffered placement. Thus, it is my finding and conclusion that District has failed to bear the burden imposed upon it by the Burlington Prerequisites of establishing that it offered Student a free, appropriate public education.

Having made such determination, I must then move to consider whether Parents have borne their burden of establishing that the educational facility unilaterally selected by Parents was appropriate to meet Student’s special education needs.

Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000], abrogated on other grounds by Schaffer v. Weast, 546 U.S. 49, 57-58 [2005]).

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided the special education services specifically needed by the student]; Frank G., 459 F.3d.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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 in determining whether that placement reasonably serves a child's individual needs. 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 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, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).”

As previously noted, Parents unilaterally placed Student at for the 2013-2014 school year – that is, they continued Student’s placement at such facility, as Student was attending such facility during the previous school year. In their effort to sustain their burden of establishing the appropriateness of that placement, Parents presented the testimony of Witness . Ms. serves as the for Witness testified that is a school . According to Witness , the School meets with each child, evaluating and observing each child in order to create an individualized education program for each student, which focuses on , and and offering programs for each of its students so that those students may progress at their own pace (T.R. 63-65). Student’s progress is monitored throughout the school year so that adjustments might be made if a particular approach is not working or if progress has been made, making established goals or methodologies obsolete (T.R.73) The school is , having a total population of students in . Student receives her in a class with a staffing ratio of and (T.R.74). I note, however, that such class, according to Witness , actually had ; and (T.R.80). Students are grouped by (T.R.74). Witness is familiar with Student and her progress, as Ms.

(T.R.72). Witness

commented on Student’s progress during the 2013-2014 school year, noting that Student’s , as well as her , improved as the school year progressed (T.R.78-79). Further, according to Witness , Student’s at the commencement of the 2013-2014 school year, but that substantial progress was observed by year’s end, which then permitted Student to (T.R. 82). Testimony was also provided by Witness regarding Student’s progress in (T.R.84) and in (T.R.86). In the area of , it was reported that Student made similar progress (T.R.87).

While at during the 2013-2014 school year, Student received the Related Services as had been mandated in Student’s I.E.P. prepared by District’s C.S.E. for the 2013-2014 school year (Exhibit 1), namely, ; and (T.R. 90). Student was also provided at (T.R.90).

It is my finding and determination that Parents have successfully borne their burden of establishing the appropriateness of program which they had unilaterally selected for Student for the 2013-2014 school year. Student is being provided with her by a in a setting that and considered and determined her special needs and has devised a program sufficient to meet those needs. Witness credibly testified that Student made progress in all areas during the 2013-2014 school year and District’s cross-examination of that witness did nothing that diminished that credibility.

Having determined that Parents have successfully borne the burden of establishing the appropriateness of their unilateral placement at for the 2013-2014 school year, it is necessary that I determine whether equitable considerations favor an award of tuition reimbursement or direct payment. It is my determination, based on the provisions of Education Law §4404(1)(c), that District bears the burden of establishing the negative; i.e. that equitable considerations do not favor such reimbursement or direct payment. There is little in the Record before me that speaks in any manner to such issue. I have ascertained from my review of the I.E.P. prepared by District’s C.S.E., that Student’s mother attended the meeting.

There is no intimation that Parents did anything to interfere with District’s C.S.E.

creating a special education program for Student that was capable of implementation. Indeed, it is the concession of District that it failed to offer Student a free, appropriate public education (T.R.26). Therefore, it is my finding and determination that there are no equitable considerations that would preclude Parents from obtaining reimbursement or direct payment for their unilateral placement of Student at for the 2013-2014 school year.

Such determination does not, however, conclude my review of Parents’ application for reimbursement or direct payment. Parent Nay signed a Contract with for Student’s attendance at that facility for the 2013-2014 school year on October 1, 2013 (Exhibit F). That Contract provided for the payment of ( ) Dollars, which included all Related Services. In a separate document (Exhibit G), the School provided an , w hich indicated the at ( ) and a breakdown of Related Services as per IEP Mandate, which totaled

( ) . My concern is with the claimed cost of Related Services, which is noted as being “per IEP Mandate”

(Exhibit G). Witness had also confirmed her understanding that the Related Services provided to Student during the 2013-2014 school year were the amount set out in the IEP (T.R.90). However, there is, in fact, no provision in District’s I.E.P. for a . Witness testified that Student that is, her (T.R.71); that Student (T.R. 69); and , , (T.R.70). It was also reported that Student (T.R.70) It is my finding and determination that Student was not in need of the services of a nor was one recommended by District’s I.E.P.. Student’s class had , and – including . Without , I find that Student’s . According to Witness , the School is located

. There was, I find,

. I will, therefore, disallow any consideration of the ( ) purported paid for during the 2013-2014 school year.

The provisions of the Individuals with Disabilities Education act (IDEA) 20

U.C.S. §1400 et seq., as well as the Regulations enacted by the United States Department of Education in furtherance of the IDEA (34 CFR §300), provide for the reduction or denial of a parents’ request for reimbursement in certain circumstances. Specifically, the Regulations provide that a request for reimbursement may be reduced or denied if:

“ …at the most recent IEP Team Meeting that the parents attended prior to the removal of a child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or at least ten (10) business days (including any holidays that o0ccur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i)

of this section.

34 CFR §300.148(d)

I find nothing in the Record before me that would establish that Parents complied with the mandates described above. There is in the Record a notice to Parent, dated January 24, 2014 (Exhibit C), which is a Final Notice of Recommendation offering Student a specific placement. Witness Parent testified that, when he got that letter, he visited the school within ten days – he had been told to go within ten days (T.R. 126). Thereafter, by letter dated March 28, 2014, Parent wrote a letter to the Department of Education advising that he had concluded that it was not an appropriate placement and that Parents would place Student at and seek reimbursement (Exhibit D). However, such notification and such parental response clearly has nothing to do with Parents’ request for reimbursement for the 2013-2014 school year, as the Final Notice of Recommendation and Parents’ rejection came months after Student had been placed at by Parents. An examination of Exhibit 6 - a School Location Letter – refers to an I.E.P. developed at a meeting held on December 12, 2013 - long after the Committee meeting that developed Student’s I.E.P, for the 2013-2014 school year, for which reimbursement is sought.

It is, therefore, my finding and determination that Parents have failed to establish that they have complied with the Federal Regulations cited above. However, because I am unable to determine whether the failure of proof is attributable to confusion on the part of both parties (I note that District also muddied the waters by introducing Exhibit 6 , which had nothing to do with this matter), no reduction other than those explained elsewhere in this Decision, will be imposed.

Parent testified that he made no payment whatsoever toward the costs associated with Student’s attendance at during the 2013-2014 school year (T.R.123). There is testimony by Parent that Parent paid

( ) to (T.R.123) and that his father has paid some monies to (T.R.122). However, it also appears that Parents (T.R.151). Also, a review of Parent’s letter rejecting the placement offer made by District in 2014 (Exhibit C) and Parent’s letter of March 28, 2014, rejecting such placement and stating an intent to place Student at for the coming school year (Exhibit D), may well explain why Parent paid ( ) to on April 24, 2014 - and that such payment had nothing whatsoever to do with the costs of Student’s attendance at during the 2013-2014 school year. Parent did not appear as a witness and took no part in this proceeding. Under such circumstances, I shall make no order requiring reimbursement either to the or to Parent . Rather, I shall direct payment only to for the amount of the costs of Student’s attendance at that facility during the 2013-2014 school year.

As indicated, the entire tuition charged by for Student’s attendance thereat during the 2013-2014 school year was in the amount of ( ) , which included all

Related Services. I have disallowed the charges made for in the amount of ( ) .

I note also that is a . Its program contains , described by Witness as “ ”(T.R.93), and a session of noted as “ ”, which was described by Witness as (T.R. 96). Exhibit K details the program offered to Student at during the 2013-2014 school year. My review of that schedule discloses that the School is in session for a total of hours each week and that hours of that total - or percent - is dedicated to and It is my finding that Parents are not entitled to reimbursement or direct payment for such portion of the school week. I shall, therefore, disallow the sum of ( ) – percent

–from the amount of ( ) charged by for the .

Thus, it is my finding that there is due to the sum of

( ) .

ORDER

Based upon the above review, it is

HEREBY ORDERED that and the New York City Department of Education pay to the sum of ( ) , as and for costs related to Student’s attendance at that facility for the 2013-2014 school year Dated: January 6, 2016

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 NOVEMBER 10, 2015

A. Parents’ Due Process Complaint Notice, dated 3-20-15 B Not Offered (3 pages; Parents)

C. Final Notice of Recommendation, dated 1-24-14 (1 page; Parents)

D. Letter from Parent to DOE, dated 3-28-14 (1 page; Parents)

E. District’s Due Process Response to Complaint, dated 4-1-15 (3 pages; Parents)

F. Enrollment Contract, dated 10-1-13, for the 2013-2014 school year, signed by Parent and School (1 page; Parents)

G. for 2013-2014 school year (1 page; Parents)

H. Student’s Attendance Record for the 2013-2014 school year (1 page; Parents)

I. Copy of Official Check, dated 4-24-14, to School – front and back (1 page; Parents)

J. Description of the (2 pages; Parents)

K. Student’s Daily Schedule for the 2013-2014 school year (1 page; Parents)

L. for Student for 2013-2014 school year (1 page; Parents)

M. – 2013-2014 school year (1 page; Parents)

N. Parents (1 page; Parents)

O. Description of Case No. 148392 for the 2013-2014 school year (2 pages; Parents)

P. Description of for the 2013-2014 school year (1 page; Parents)

Q. Description of for the 2013-2014 school year (1 page; Parents)

R. Description of for the 2013-2014 school year (1 page; Parents)

1. Student’s I.E.P. as developed by District’s C.S.E. on 2-7-13 (10 pages; DOE)

2. Report of Evaluation of Student by, dated 1-30-13 3 Not Received 4 Not Received 5 Not Received (3 pages; DOE)

6. School Location Letter, dated 1-22-14 (1 page; DOE)

DOCUMENTATION ENTERED INTO RECORD DECEMBER 4, 2015

S. Parent ’s Federal Income Tax Return for 2013 (2 pages; Parents)