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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 2
Hearing Requested By: Parent
Date of Hearing: March 11, 2011
April 12, 2011
May 3, 2011
June 10, 2011
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2011
Attorney — Student
Parents
Parents
Attorney — DOE
Psychologist CSE 9 (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2011
Attorney — Student
Parents
Parents
Attorney — DOE
Special Ed Teacher (via telephone) — DOE
Parent Coordinator (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2011
Attorney — Student
Program Director, School — Student
Social Worker, School — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2011
Attorney — Student
Parents
Parents
School Program Director (via telephone) — Student
Attorney — DOE
On the above listed dates, I conducted an Impartial Hearing regarding the parents’ request for tuition reimbursement for the unilateral placement of their son, . (“ ”) at the School (“ ”) during the 2010-2011 school year.
The parent’s due process complaint, dated October 21, 2010, contends that the Department of Education (“DOE”), failed provided with a Free and Appropriate Public Education (“FAPE”) during the 2010-2011 school year because Committee on Special Education (“CSE”) failed to based the Individualized Education Program (“IEP”), dated February 5, 2011, on relatable and complete evaluative data, failed to include parent training on the IEP and because the DOE failed to conduct a Functional Assessment (“FBA”), among other claims.
The DOE contends that the IEP was appropriate and that the recommended placement in a class at (for 12 months) with related services of , therapy and al therapy was appropriate for is a -year-old boy classified as a student with . is of average to low average cognitive ability and presents with delays in , social development, and processing issues, inter alia. According to the IEP, dated February 5, 2010, ’s issued contribute to his problems with and continues to present with “an over responsive profile.” (Exhibit “I” page 3). When is in proximity to a “ peer” he may and his . “In some situations, he may attempt to or at a trusted adult or the child.” (Exhibit “I” page 4). Nevertheless, the IEP indicates that has made some progress in this area.
is not toilet trained, nor is he independent in his activities of daily living.
has attended the since September 2008.
By letter, dated June 16, 2010, the parents advised the DOE that they had not received a placement offer and were placing at the . On or about June 22, 2010, the parents received the DOE’s Final Notice of Recommendation for the school year beginning on or about July 1, 2010. The DOE recommended placement at . On July 9, 2010, the parents visited and determined that it was not appropriate for On July 20, 2010, the parent sent a second letter to the DOE rejecting placement at and advised the DOE again of ’s enrollment at the . Conclusions of Law:
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, 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]). 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; 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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 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 M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). FAPE for the 2010-2011 School year.
The DOE contends that the parents’ complaint must be dismissed because the parents failed to contest the IEP at the CSE meeting on February 5, 2010, and therefore failed“ exhaust their administrative remedies.” The DOE cites Ellensburg v. New Mexico Military Institute, 47 IDELR 153, 478 F.3rd 1262 (10th Cir. 2007). Ellensburg has no authority in New York State and, as such, I need not follow the holding in this case. However, assuming it did, the record shows that the parents’ conveyed their concerns about the IEP to the CSE members at the CSE meeting on February 5, 2010 and then sent a follow up letter to the CSE on February 18, 2010. The record also shows that the parents did not receive a response from the CSE regarding their concerns. As such, I find the DOE’s argument is not only unpersuasive because Ellensburg is it not the law in New York State, but the facts in this case would not support a finding in the DOE’s favor under Ellensburg.
The DOE also contends that the parents’ complaint must be dismissed because the IEP dated February 5, 2010 was appropriate and because was offered FAPE. I disagree.
Here, the record shows that the CSE failed to have sufficient evaluative information for at the time the CSE generated the subject IEP on February 5, 2011.
First, although the record shows that the CSE relied on the teacher reports prepared by the RS, it does not show that the CSE reviewed and/or relied upon the most recent cognitive and academic testing at the time of the CSE. To wit, the psychoeducational update, dated February 17, 2009 conducted by Dr. at the Institute. Although Dr. testified that she “may have looked at other documents,” she could not confirm that she did. Nevertheless, the “other documents” Dr. was referring to was the student’s psycho-educational from 2007. Nothing in the record demonstrates that Dr. , or anyone else at the CSE, reviewed the psycho-educational update, dated February 17, 2009, either before or at the time the CSE meeting was held. Significantly, Dr. testified that the psycho-educational update, which recommended that continue at the , was not brought to the CSE meeting. Further, in the DOE” post hearing brief, the DOE admits that Dr. only added the student’s “cognitive levels” (As reported on Dr. Salsberg’s Update) to the student’s District 75 referral form after the CSE meeting.
Finally, the subject IEP fails to indicate what, if any, documents and/or evaluations the CSE relied on when it drafted the IEP.
Second, the CSE should have conducted and/or recommended that an FBA be conducted in order to develop an appropriate Intervention Plan (“BIP”) for Here, the record shows the has significant issues that lead to interfering . According to the IEP, ’s issues contribute to his problems with dysregulation and continues to present with “an over responsive profile.” Additionally, when is in proximity to a “ peer” he may and cover his ears” and in some situations, he may attempt to squeeze or scratch at a trusted adult or another child. Based on these facts, I find that an FBA was warranted in order of the CSE to develop an appropriate BIP for
Finally, the IEP should have included parenting training as a related service. It is undisputed that is classified as a student with . As such, the parents are entitled to parenting training (8 N.Y.C.R.R. Section 200.13.(d)), that is tailored to address the student’s individual needs Application of a Child with a Disability, Appeal No. 07-
015. The IEP does not provide for parent , nor does it provide parent training. I find that the “workshops” offered by the DOE based on the “parents’ interest” are insufficient to meet this mandate.
Based on the foregoing, I find that the DOE failed to offer FAPE for the 2010-2011 school year.
School:
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Matrejek, 471 F. Supp. 2d at 419-420; Application of the Bd. of Educ., Appeal No. 08085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01105); however, the qualifications of teachers may be relevant in considering the appropriateness of instruction (Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 890625, at * 27 [N.D.N.Y. March 31, 2009). 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]). "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; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). 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 [citing 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 specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89; see Matrejek, 471
F. Supp. 2d at 429; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660 [S.D.N.Y. 2005]). 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; see Frank G., 459 F.3d at 364-65).
For the reasons set forth below, I find that the hearing record shows that the was appropriate in that it provided the student with educational instruction specially designed to meet his unique needs, supported by such services as were necessary to permit to benefit from instruction.
, a licensed clinical social worker and a certified school administrator employed at the School, testified on behalf of the parent. Ms. stated that is placed in a class at the School and receives and therapy, therapy, therapy and adaptive education.
The employs a DIR model (“Developmental Individual Relationship”), also known as “Floor Time.” The DIR is a model that is generally employed with children on the autistic spectrum in order to help the students develop relationships with their instructors and address the child’s and deficits while engaging in the process of (Tr. 292).
Here, the record shows that the program at is a therapeutic environment that is designed to address ’s and social deficits. The Progress Reports from the indicate that has made progress with respect to decreasing the frequency of his “ ,” and his interfering at school (Exhibit s “13, 14“). has also made progress with respect to his and skills and his skills (Exhibit “17”). Finally, has increased his sight word vocabulary while at (Exhibit “17”).
Based on the foregoing, I find that the program at the is appropriate for because the program at the has addressed the student’s educational and social/emotional deficits and because has derived a meaningful educational benefit during the 2010-2011 school year. Equities
Nothing in the record suggests that the parents failed to cooperate with the CSE. The DOE’s assertion that the parents’ never intended to send to a public school is unpersuasive. Here, the record shows that by letter, dated June 16, 2010, the parents advised the CSE that they were placing at the RS for the 2010-2011 school year because up until that time the DOE failed to offer any placement for the subject school year, among other reasons.. By letter, dated June 15, 2011, the DOE sent the FNR, which was not received by the parents until June 22, 2010. Although it appears that the letters crossed each other in the mail, it is undisputed that the 12-month program for began on or about July 1, 2010. It was not explained at the hearing why the DOE, who generated the subject IEP on February 5, 2011, waited until June 15, 2010 to send the parents the notice of proposed placement. Nevertheless, once the parents received the FNR, they promptly visited the DOE’s proposed program and rejected it by letter dated July 20, 2010. Thereafter, DOE failed to respond to the parents. Accordingly, I find that equities warrant a decision in favor of the parents.
Based on the foregoing, the parents’ request for tuition reimbursement for payments made to the School for the 2010-2011 school year is granted.
ORDERED
The Department of Education is directed to reimburse the parents for all payments made to the School for the school year 2010-2011 school year upon proof of payment of same. Dated: August 16, 2011
_______________________________
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer
JM:dl
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 ON MARCH 11, 2011
PARENT
A Hearing Request, dated 10/21/10, 16 pages B DOE Due Process Response, dated 10/27/10, 4 pages C E-mail, dated 10/27/10, 2 pages D Letter, dated 8/13/10, 3 pages E Letter, dated 7/20, 3 pages F Letter, dated 6/22/10, 3 pages G Letter, dated 6/16/10, 2 pages H Letter, dated 2/18/10, 2 pages I IEP, dated 2/5/10, 23 pages J Notes, Undated, 2 pages K Contact Notes, Undated, 1 page L Psychoed Updated, dated 2/17/09, 7 pages M Progress Report, dated 5/2010, 16 pages N Progress Report, dated 12/2009, 15 pages O Progress Report, dated 12/2010, 12 pages P Fax, dated 2/18/10, 2 pages Q Enrollment Contract, 2010-2011, 4 pages R School Informational Materials, Undated, 16 pages S Affidavit, dated 1/5/11, 2 pages
DEPARTMENT OF EDUCATION
1 FNR, dated 6/15/10, 1 page 2 CSE Meeting Minutes, dated 2/5/10, 2 pages 3 IEP, dated 2/5/10, 18 pages 4 Notice of Recommended Deferred Placement, dated 2/5/10, 1 page 5 Various Correspondence, dated 3/4/, 2/10, 2/5/10, 3 pages 6 Evaluation, dated 6/8/09, 6 pages 7 Classroom Observation, dated 11/6/10, 2 pages 8 Psychological Evaluation, dated 9/21/07 & 10/27/07,[9] pages
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 3, 2011
PARENT
I-2 Additional page to Exhibit I I-3 Additional page to Exhibit I T Progress Report, 2009-2010 2 pages. U Affidavit of Payment, 4/15/11, 2 pages. V Attendance Record 2010-2011, 1 page
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 10, 2011
PARENT
W Progress report, 05/2011, 14 pages X Attendance Record, Summer 2010, 1 page
DEPARTMENT OF EDUCATION
Footnotes
[9] Registration Certificate, Dr. , 1 page