Impartial Hearing Decision

HEARING OFFICER'S FINDINGS OF FACT AND DECISION

JURISDICTIONAL STATEMENT AND POSITION OF THE PARTIES

On December 9, 2010 I was appointed to hear the matter of a child with a disability, pursuant to the Individuals with Disabilities in Education Improvement Act (IDEIA), 20 U.S.C. 1415 (f)(1) and Florence County School District Four v. Carter by Carter, 114 S. Ct. 361 (1993). The impartial hearing request was filed on December 6, 2010. Hearings were held on the merits on April 25, 2011, April 26, 2011 and May 4, 2011 with a cancelled date on April 27, 2011. The hearing was completed with closing briefs submitted on or about July 8, 2011. At this time the proceedings were closed, and no further testimony was taken.

It is noted that this is a parental request for an impartial hearing, dated December 6, 2010 [Exh. C], based on the allegations that: (1) the school district failed to offer their child, [redacted], a free and appropriate education (FAPE) for the [redacted[ school year; (2) the alleged school district failure is based on the CSE annual review [redacted]; (3) the tremendous number of modifications and supports that were added to the child’s IEP demonstrates the inappropriateness of the [redacted] (4) the CSE meeting of [redacted]violated IDEIA procedures by failing to consider documentation supplied by medical professionals employed by the parents which recommended a [redacted]school year; (5) the CSE’s IEP goals failed to address adequately such concerns as the [redacted]; (6) the CSE failed to perform a [redacted]; (7) the CSE failed to develop appropriate educational goals and objectives that were [redacted]; and (8) the proposed placement did not offer the child [redacted].

The parents’ proposed solution is the placement of their child [redacted] The parents also claim that the equities of this case support a claim for reimbursement.

The School District (DOE) denies the allegations in the parents’ complaint and responds, in summary, as follows. The child was offered a FAPE for the [redacted] school year since the DOE complied with all of the procedural and substantive requirements set forth in the IDEIA. The DOE’s IEP team met on [redacted]. The parents were given the opportunity for meaningful participation in the [redacted] Although the CSE recommended a [redacted] The patents failed to establish that the [redacted] Finally, the equitable considerations do not favor reimbursement because the parents really had no intention of enrolling their child in a public school as reflected by their payment history to[redacted]. Those parent allegations addressed during the course of the hearing or in the closing statement but not set forth in the parents’ complaint must be deemed waived,

THE SCHOOL DISTRICT’S CASE

1st Hearing Date: [redacted]

The School District was represented by [redacted] who made the opening statement. The parents are seeking tuition reimbursement for the placement of their son at [redacted]. The child is [redacted]. Then for [redacted] he attended the [redacted]. There was no request for tuition reimbursement. The CSE met for the child’s [redacted] school year and recommended [redacted] school. [Tr. at 43] On [redacted] the parents sent the district a 10-day letter which rejected the CSE’s recommended program and placement and indicated that [redacted]He attended [redacted]. However, the school district did offer a FAPE in its recommended program while the [redacted].

Mr. [redacted], the district’s [redacted], was the district’s first witness. He was educated in economics, education and special education at [redacted]. He holds certificates in school district administration, school administration and as an [redacted]. He worked as a special education teacher primarily before shifting to administration in [redacted]. One of his duties was to serve as [redacted].

The child in question was classified [redacted] The district undertook efforts to re-evaluate the child during the [redacted] school year. However, the parents decided to have their claims regarding the child based solely on [redacted]The latest was a [redacted] meeting was canceled at the request of the parents. It was re-scheduled for [redacted]. The CSE determined that the child has a [redacted] Tests showed that his[redacted] skills had declined. [Tr. at 78] His [redacted]

The CSE felt that he [redacted] For the [redacted] school year the CSE recommended a [redacted] Mr. [redacted] recalled that at the [redacted] CSE meeting the parent stated that the district’s [redacted] school would not be an appropriate program. An IEP was developed as a result of the CSE meeting and mailed to the parent prior to the [redacted] school year. The parent sent a [redacred] letter rejecting the district program prior to receiving a copy of the IEP in the mail. On cross-examination from [redacted] testified that he observed the child on [redacted] the child’s [redacted] reevaluation. It was for about 35 minutes. The child appeared to be happily functioning in his setting. [Tr. at 115] There were [redacted]. He noted that one of the child’s [redacted] Goals on the IEP were taken from [redacted] because the student presented with the same needs.

On re-direct by [redacted] testified that the CSE review considered a letter of [redacted] [The letter recommended a [redacted] The CSE also received a report from [redacted]

THE PARENTS' CASE:

2nd Hearing Date: [redacted] [redacted] represented the parents and made the opening statement The child in question is a [redacted] The mother was the first witness in her direct case. She explained how her child was [redacted] His problems caused the parents to request a program review during the middle of the [redacted] school year. The school district then gave him [redacted]. It helped a little, but he still needed [redacted] .

Her child did well at [redacted] he was happier there than at [redacted]l. She did not seek [redacted] from the school district for the [redacted]

At the CSE meeting of [redacted]

Upon cross-examination by [redacted]. This was also approximately the district’s deadline date for submission of [redacted] requests.

After writing his evaluation, [redacted]. After [redacted], she was of the opinion that the [redacted] program was inappropriate, [Tr. at 348] 3rd Hearing Date: [redacted] The parents’ direct case continued on this date with [redacted] He did [redacted] [redacted] On cross-examination from [redacted] [redacted] The next parental witness was [redacted] She has been hired by the parents [redacted] [redacted] recalled a conversation with [redacted] in which [redacted] [redacted] The child’s [redacted] The child has learned to be more [redacted] A parent [redacted]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Education once again bears the burden of demonstrating the appropriateness of the program recommended by its CSE based on legislation passed in the aftermath of Schaffer, et al. v. Weast., et al., 2005 WL 302815 (2005). Therefore, the Department (DOE) has the burden set forth in a long line of cases. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, March 11, 1983. To meet its burden, the Department of Education is required to show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education v. Rowley, 438 U.S. 176 [1982]) and that the recommended program is the least restrictive environment for the child. {34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]} An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep 487, March 11, 1983.

It is clear that the legislative intent of 20 U.S. Code Section 1412 of the Individuals with Disabilities Act (IDEIA) is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive and independent lives as adults to the maximum extent possible. In furtherance of this, the IEP is designated, essentially, as the blueprint for ensuring the integrity and appropriateness of the child’s education. The IEP team’s determination of how that child’s disability affects his involvement and progress in the general curriculum is the primary tool by which the protections of the IDEIA are implemented per sections 1436(d) and 1414(d). It is hoped that, as a tool, the IEP will be proactive rather than merely responsive to crises in educational management. In furtherance of this goal, the Department of Education is constrained to develop a plan which meets the requirements of service delivery in the “least restrictive environment.” Specifically, children with disabilities must be educated with children who are not disabled to the maximum extent possible. Separation or removal from the mainstream curriculum is indicated only where the nature or severity of the disability is such that an education in regular classes with the use of supplementary aids and services cannot be achieved successfully.

Although the IDEIA mandates individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, for example, E.S., 135 F.3d at 569. Nor does the IDEIA require a school district to “either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEIA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. The IDEIA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with “some educational benefit.” Id. At 200

In the instant case, the child, born on [redacted], has been and continues to be a “child with a disability” as that term is defined under the IDEIA, 20 U.S.C. Sect. 1400 et seq., and is classified as (and has issues with attention distractibility) as that term is defined by 20 U.S.C. Sect. 1401(a)(1). The child was first diagnosed with [redacted]. The district referred him for [redacted] /

It is the prevailing law that the district in such cases has the burden of proof to establish that its program and placement provide a FAPE to the child who is classified with a disability under the IDEIA. The district’s sole witness in its direct case,[redacted], provides no documentary support or expert opinion to support his testimony that the program recommended by the CSE/IEP meeting of [redacted] indeed provided a FAPE. Nor did the district establish its basis for the proposed placement of the child at the district’s [redacted] other than the fact that there was a seat available. It is true that the district offered a [redacted] program consisting of: [redacted] Yet with its burden of proof to establish that its program provided a FAPE, it is hardly persuasive to repeat once again goals already found to be unsuccessful in [redacted] and then to point to alleged failures in the child’s [redacted] as an indicator that the district’s program had any prospect of success.

The district’s [redacted] program set forth in its IEP is said to be based on the child’s [redacted]. Yet there was no one serving on the CSE of [redacted] who can be said to have had any basis for knowing the child’s then [redacted] [redacted] did not know the child at all and, according to parental testimony, expressed concern at the CSE meeting about whether the child could handle a [redacted] [redacted]. Moreover, the district provided no witnesses who would be teaching in the program and who could explain how the IEP would be implemented in the classroom. [redacted] was the district’s sole witness. While [redacted] had observed the child once at [redacted], [redacted] made no claim as to expertise on the child’s [redacted]. The CSE, at the time that it made its program and placement recommendations, had in its possession the [redaction]. The district has argued that there is no basis to conclude that [redacted] These arguments, however, have validity only when the school district can meet its burden of proof from its own persuasive sources to demonstrate that a FAPE has been offered. The district’s direct case has provided no such persuasive or reliable sources. What we have here is a demonstrated failure by the district in [redacted] – which is not denied – and then a relatively similar program in [redacted] which the district expected the parents to accept without any persuasive or reliable evidence that it was appropriate for the child. If the district thought that [redacted] was not persuasive, then it should have offered its own [redacted] from a reliable and persuasive source. While [redacted] the CSE had no expertise of its own on which to rely and which might have formed an educational basis for the program and placement offered in its IEP. In fact [redacted] which not only re-affirmed his recommendation of [redacted].

As a legal matter the Southern District of New York has held that if reports and assessments produced by or relied upon by the school district are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 (SDNY 2010). It is my opinion as a result of the facts set forth above that the IEP developed for the child did not develop a suitable program calculated to confer a reasonable education benefit and thus failed to provide FAPE to the student. The testimony and the evidence does not support the district’s conclusion that [redacted] educational setting that would be calculated to provide the child with meaningful education progress. It is a fundamental feature of prong one of Burlington/Carter that the school district must establish that it has met its burden of proof and its burden of persuasion, pursuant to Schaffer, supra, of demonstrating that it provided the child with a FAPE. Nowhere in its direct case has the DOE met this required burden of proof. Thus, the DOE has failed its prong one burden.

I must now consider prong two in which I must determine the appropriateness of the parents’ requested relief as set forth in the complaint dated [redacted]. Under prong two parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate. The district has argued that the parents have failed their burden because they unilaterally enrolled their child for the[redacted] which did not provide the child with a FAPE. The district notes that the parents have not proven their claim that the child requires [redacted]l. The district contends that [redacted] and does not provide the “least restrictive setting” in which the disabled child can function successfully. Moreover, the child had a “lackluster school year and a surprising lack of progress” for the [redacted] school year. The [redacted] placement which the child was given is [redacted] inappropriate [redacted]. Walczak v. Florida Union Free School District, 142 F.3d 119 at 122 (2d Cir. 1998); Application of a Child with a Disability, Appeal No. 03-066. The district notes that [redacted] The arguments regarding [redacted]..

With respect to prong two, parents have the burden to establish that the child is grouped with others who have similar academic abilities, learning characteristics, social, physical and management needs. 8 NYCRR Sect. 200.6. It should be noted, however, that there is broad discretion in determining the appropriateness of a program initiated by a parent. The Supreme Court in Burlington held that a parent who can show that the education offered by the public schools is inappropriate may unilaterally place the child in a private educational setting and obtain reimbursement for tuition and other expenses provided that the child’s privately funded service is appropriate. 471 U,S. 359, 105 S.Ct. 1996 (1985). What was to be deemed “appropriate” received a broad and flexible interpretation in Florence County School District Four v. Carter by Carter, supra, and Frank G. and Dianne G. v. Board of Education of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). The courts have held that the test for the parents’ private placement is that it is appropriate and not that it is perfect. Frank G, 459 F.3d at 364. Nor must the parents show “that a private placement furnishes every special service necessary”; all that is required is that the alternate placement “provides educational instruction specially designed to meet the unique needs of a handicapped child.” Frank G., 459 F.3d at 365. See, also, M.S. v. Yonkers Board of Education. 231 F.3d 96 (2d Cir. 2000). In Frank G., the Second Circuit held that once the evidence establishes a Prong one deprivation, the parents’ unilateral placement under Prong two need not be perfect, need not meet all of the child’s special education needs, and need not even be in the child’s least restrictive environment. 459 F.3d at 364-365. Furthermore, said unilateral placement need not even offer the child an IEP or employ “certified” special education teachers. Id. The evidence supplied by the parents, especially the testimonial evidence of [redacted] are adequate for the parents to have met their prong two burden that the [redacted] is an appropriate educational placement.

The school district contends that the parents have not met their burden under prong two as set forth above and that the [redacted] cannot be considered inseparably from its [redacted] component. (Closing statement at [redacted]) However, the school district is incorrect that the two components must be considered as a single entity and as logically inseparable. The parents have [redacted]. The parents’ complaint is for the [redacted] school year which includes the [redacted] component. However, it is possible to attend the [redacted] only as the child indeed did in [redacted]. The parents have established as set forth above that they are entitled to [redacted] by satisfying prong two with respect to the [redacted]. However, the evidence must be examined as to whether they have met prong two standards with respect to the [redacted] component.

Even under the relaxed standards of Frank G., supra, and its progeny, it cannot be said that the[redacted] “provides educational instruction specially designed to meet the unique needs of a handicapped child.” Id. At 365. The parents have introduced letters from [redacted] that the child needs a [redacted] However, neither letter is especially persuasive since they are not consistent with earlier testimony and documents which evaluated the child’s needs and progress without reference to [redacted] The child’s [redacted] Nor are the letters from [redacted] especially persuasive. None of the letters from [redacted[. Rather the letters were solicited by the parents to support their claims for [redacted]. The district is persuasive also that parental testimony suggests that [redacted]

Although the IDEIA mandates individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, E.S., 135 F.3d at 569. Nor does the IDEIA require a school district to “either maximize a student’s potential or provide the best possible education at public expense. Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEIA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside..” Rowley, 458 U.S. at 192. The IDEIA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with some educational benefit.” Id. At 200. The law provides, therefore, that the parents may well satisfy prong two, as is the case here, with respect to providing “some educational benefit” to the child through the [redacted]. At the same time they are not necessarily entitled to the [redacted] even though that is what they are seeking for the child for [redacted].

The school district has made the case that the [redacted] of the child show that he did not make the progress claimed by [redacted] in their respective testimonies. In fact the district is correct that the testing results [redacted] In many respects, the child continues to present with essentially the same [redacted]l. The district goes on to argue that since this is the case the parents should be considered to have failed their prong two burden in all respects, both the [redacted] components of the [redacted]. However, the prong two test is essentially a prospective test that does not even require retrospective evidence of progress and achievement. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007); see, also, D.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595 (2d Cir. 2005). Moreover. the child appears to have made “some educational progress” from his enrollment at [redacted] It is my ruling, therefore, that the parents have satisfied prong two with respect to the [redacted]. What I find most persuasive in favor of the [redacted] program for the parents is that portion of the Frank G. decision for Prong two which supports educational services that are “specially designed to meet the unique needs of a handicapped child.” Id. At 365. Under prevailing law and based on the testimonial and documentary evidence submitted, therefore, the parents’ choice of the [redacted] for the child is entirely appropriate. The evidence of appropriateness satisfies the second prong of Burlington/Carter. On the other hand, the enhancement of the child’s skills which was intended by the [redacted] is not intended by the IDEIA to be at public expense. In addition, the facts presented in this case do not justify the highly restrictive nature of the [redacted].

The third prong addresses the equitable considerations for the relief requested. The school district alleges that the parents have not satisfied their prong three burden. The district contends that the parents never seriously considered the public school system in seeking enrollment [redacted] and then seek tuition reimbursement rather than enroll their child in the public school program. The evidence presented by the district is that the parents made their deposit on [redacted] and then paid the full tuition balance for [redacted] program on [redacted] when they could have deferred the final payment until as late as [redacted] This full payment took place over a month before the proposed [redacted] annual review meeting where an IEP program was to be finalized. The CSE/IEP meeting was then re-scheduled for [redacted]. The parents had already sent the district a 10-day-letter on [redacted] rejecting the district’s IEP program and the child had already begun attending the [redacted] when the parents resumed a correspondence with [redacted] in which they claimed to be seeking more information about the district program.

The parents argue that they were fully cooperative with the district at all times throughout the IEP process. They consented to any DOE requests for evaluations. They attended CSE/IEP meetings. They stayed in regular communication with [redacted] throughout the CSE/IEP process. They enrolled their child at the [redacted] early just to ensure that there would be a place for their child at the school in the event that the district did not offer a FAPE. Had a FAPE been offered they would have accepted the district program; the [redacted] waiting list made it likely that they would have been able recover all payments but the nonrefundable deposit of [redacted].

In weighing the equities, “the critical consideration, as the Court sees it, is not whether the parents have their minds set on private school, but whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible. If they have not, they cannot fairly be heard to complain that the school authorities have failed to develop an IEP and consequently have failed to offer a FAPE for their child. But if they have cooperated – even if throughout they have held to the belief that the best the school authorities can offer will not be good enough – they are entitled, acting “at their own risk,” to place the child privately, hoping that eventually they will be able to convince an ALJ or a judge that the child was not offered a FAPE.” Weast v. Schaffer, 240 F.Supp 2d 396 (2002). The record is clear in this case that the parents cooperated in good faith at all times with the district. Upon the absence of an appropriate recommendation for the child's educational needs in the previous year and with time of the essence for obtaining a program and placement for their child, the parents acted reasonably in proceeding with their contract with the [redacted] school early in [redacted].. Therefore, equity considerations support the parents with respect to these issues.

Accordingly, I find that the evidence supports the relief requested by the parents, in part, namely the claim for tuition reimbursement for payment for the [redacted] school year tuition to the [redacted] for the [redacted] program. The total to be reimbursed is [redacted]. Reimbursement relief is denied for payment of [redacted] for the school’s [redacted]

WHEREFORE, it is hereby ordered that:

1. The [redacted] District failed to provide the child in question with a free and appropriate education (FAPE) for the 2010-2011 school year.

2. The parents acted appropriately in enrolling their child at [redacted] for the [redacted] school year for the [redacted] program. Accordingly, the district shall reimburse them in the amount of [redacted] for tuition paid by the parents to [redacted]l for the [redacted] program. The parents did not act appropriately in enrolling their child in the [redacted] and, accordingly, shall not be reimbursed the [redacted] which they have paid for it.

3. The amount to be reimbursed shall be documented by [redacted] invoices and bills presented and copies of canceled checks from the parents’ accounts

4. This decision is subject to appeal to and review by the State Review Officer.

Actual Record Close Date: September 4, 2011 MARTIN SCHIFF

Impartial Hearing Officer