NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: November 1, 2010
February 16, 2011
March 29, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 1, 2011
Parents
Parents
Department of Education
Department of Education
School (via telephone) Department of Education (via telephone) Department of Education
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 16, 2011
Parents
Parents
Parents
(via telephone) Parents
(via telephone) Parents
Department of Education
(via telephone) Department of Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 29. 2011
Parents
Parents
(via telephone) Parents
Department of Education
Department of Education
On November 1, 2010, February 16, 2011 and March 29, 2011, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education of XXX (“the student”).
The proceeding was initiated at the request of the parents by correspondence dated June 9, 2010. (Ex. A) I was appointed Impartial Hearing Officer on June 10, 2010. I was available to conduct a hearing within 14 days of the end of resolution. At a telephone conference with the parties conducted on July 15, 2010, the initial hearing was scheduled for September 16, 2010, the first mutually available date for the parties and the hearing officer in view of vacation schedules, school schedules, religious holidays and the availability of witnesses. That hearing was adjourned at the request of the DOE, with the consent of the parents, and a hearing was scheduled for November 1, 2010, the first date available for all parties, witnesses and the hearing officer. (T. 5)
The initial compliance date in this matter was August 23, 2010. The parties jointly moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses, counsel unavailability due to illness and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 5)
The current compliance date is June 19, 2010. The record closed on May 18, 2011, upon my receipt of all post-closing memoranda.
Background
At the beginning of the 2009-2010 school year the student was a -year old entering the grade who had been classified by the CSE as a student who was . (Ex. 1) That classification is not in dispute. The student attended at of & (“- ” or “”) for grade and thereafter. (T. 473) is a which is provides - -education classes in day schools (“ ”). (Ex. T)
The CSE held an annual review meeting on June 22, 2009, and for the 2009-2010 school year, the grade, recommended a class in a school ( ) and of and (“ ”), (“ ”) and (Ex. 1)
On three occasions, by letters dated June 24, 2009, October 7, 2009, and October 27, 2009, the CSE recommended the same class in the same school, XXX (“the school”). (Exs. G, O, P) By letters dated September 10, 2009, October 22, 2009 and November 2, 2009, the parent informed the CSE that that class was full. (Exs. D, E, F)
By letter dated November 18, 2009, the CSE offered a placement in a different school which the parent rejected as inappropriate by letter dated December 17, 2009 . (Exs. G, Q) The DOE is not defending that placement.
The is seeking for in of for the 2009-2010 school year at totaling . (T.491, Exs. J, K)
Witnesses Presented
The DOE presented the following witnesses: the of the recommended class at the school (“”); the at the school (“ ”); the school who participated in the CSE review (“the ”); , (“”), , (“”) .
The presented the following witnesses: (“the ”); (“the ”); (“the ”), the (“the ”).
Findings of Fact and Conclusions of Law
The legal standard applicable to a request for for is well established. is granted if: (1) the offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985).
Prong 1
The DOE asserts that it provided a placement pursuant to the IEP. The parent testified that upon inquiry to the school after receiving each of the three FNRs, she was informed the recommended class was full. (T. 477-481, 508; Exs. D, E, F) Accordingly, the parent claims that a placement was not provided and the DOE did not provide a free and appropriate public education. (“FAPE”).
To support its claim that the proposed class was available, the DOE presented the testimony of a involved with at the school, and the of the proposed class. The testified that at the commencement of the first day of school the class attendance list showed students on the and on the commencement of the second day of school the class roster showed children. (T. 30-31; Ex. 8) However, the also testified that the first day enrollment figures are based upon information that was provided prior to the start of school and the second day enrollment figures most likely was added to the class on the first day of school. (T. 34-35, 43) Therefore, the testimony of the does not contradict the parent‟s credible testimony that when she telephoned on the first day of school she was told that the class was full. With regard to the testimony of the , I note that her testimony was inconsistent with the class rosters and I conclude that her memory was unreliable with regard to the issue of enrollment at the beginning of the 2009-2010 school year. (T. 161, 194, 240-252, 255 ) Further, her testimony too does not contradict the parent‟s testimony as to what she was told. I find credible the parent‟s testimony that she was told on three occasions, including the first day of school, that the class was full and that she promptly informed the CSE. If that information was incorrect, the CSE had an opportunity to so inform the parent and did not do so. The parent was entitled to rely upon the information provided by DOE school staff concerning availability. I conclude in the circumstances of this case, that the action and inaction of DOE staff constitutes a failure to provide a placement.
Although the DOE asserts that a variance could have been applied for, there was no testimony concerning the school or state policy with regard to obtaining variances or that school staff providing information to the parent was aware of that and considered that before informing her that the class was full. Further, I note that the CSE was promptly informed of her understanding and that its response, when finally made, was to again recommend the same placement. There is no evidence that any attempt to obtain a variance or determine the basis for the parent‟s claim was made.
Accordingly, I conclude that the DOE has failed to establish that a placement was provided and therefore it has not established that a FAPE was provided.
In their hearing request, the parents also made various claims concerning the IEP developed by the CSE. Those claims have not been addressed by the parents in their closing memorandum. I conclude, therefore, that the claims that the IEP was defective have been waived. Further, in view of my determination with regard to the proposed placement, I do not address the DOE‟s claims that: 1) the parents are barred from asserting that the recommended placement was inappropriate because that claim was not made in the complaint: 2) the IEP was reasonably calculated to provide the student with meaningful benefits and designed to address those needs; 3) the recommended placement was appropriate.
Prong 2:
When a public school system has failed to provide FAPE, the and chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the obtained by the parents for the student. However, parents are not barred from if their does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 ( Cir. 2006). It is not required that the provider of the be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive benefits.‟ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides instruction specially designed to meet the unique needs of a handicapped child, supported by such as are necessary to permit the child to benefit from .
Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
The has been diagnosed with , has , in and and order , , , and with as well as including with , , , , - and .
(T. 62, 66, 67, 73, 90,107, 114, 282, 283, 392, 393; Exs. H, I, M, 1, 3, 4) The evidence shows that the studies portion of the provides:
An grade class ( with students with similar and (T. 269, 292, 294, 388-390, Ex. I) Instruction material and are for the student by the classroom , who is certified in education, the curriculum follows the New York State standards and the student and small group and one to one instruction is provided when appropriate. (T. 264, 267-268, 272, 274, 283-284, 287, 287, 391, 396, 397, 404, 401-402, 405, 415-417, 419, 448, 462; Ex. I) Various classes are provided including social skills and the students may participate in mainstream classes, accompanied by an , if their warrant that. (T. 272, 274. 408-410) The student‟s class is located in a mainstream school and the student was mainstreamed for , , , , , , , , , recess and . (T. 272, 286, 287, 391, 414-417, 419, 463; Ex. I) confer routinely concerning the student‟s mainstream activities. (T. 286, 409) The , and , and with and are addressed in class with . (T. 276, 283, 284-285, 387, 395-398, 401-404, 412, 443, 447-448, 462, 512-513). The and mandate is provided by the School District ( ”), the district of location, in the student‟s school, also provides an to provide monthly consult to the student at the school and and with another. (T. 276, 277, 312, 518) The student‟s in the classroom were effectively managed in the classroom and formal was not required. (T. 397, 308, 424, 451, 485-486)
The student made progress during the 2009-2010 school year both academically and socially. (T. 285-287, 419-421, 484-487)
The DOE asserts that the is not appropriate because mandated are not provided by the school itself. (Ex. II) I find that claim lacks merit in the circumstances here where the evidence shows that on balance provides in the secular studies portion, a highly attuned to the student‟s needs and reasonably calculated to enable the student to receive al benefits. Parents are not barred from if their proposed placement does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 ( Cir. 2006). See e.g. Application of the Board of Education of the Minisink Valley Central School District, Appeal No. 09-040; Application of the Bd. of Educ., Appeal No. 08-084; Application of a Child with a Disability, Appeal No. 02-093. Accordingly, I conclude that the parents have established that the portion of the they provided is appropriate.
However, the parents also seek for at least part of the “” or “morning” portion of the , asserting that the were appropriately qualified and/or supervised and the student received academic benefit from instruction that was not in nature. (Ex. I) The evidence shows that a substantial portion of the student‟s day provided instruction. (Exs. N, 9) The report card for the morning is title indicates it covers “the study of things.” (T. 368, Ex. 9) The instruction portion of the morning includes reading and the evidence shows that includes reading. (T. 352-367, Exs. N, 9) There is no documentary evidence indicating readings in any other area and to the extent that the testimonial evidence is inconsistent with my conclusion I do not credit it. That benefits generally may have been derived from or other “morning” instruction does not provide a basis for providing where, as here, I conclude that the content and concern of the was . Based upon the evidence presented I conclude that the parents are not entitled to for 30% of the Monday-Thursday 8:00 to 3:45 and 50 % of the Friday 8:00 to 1:10 . (Ex. N)
Prong 3
The evidence shows that the parent has cooperated with the CSE with regard to the development of the IEP and that she made appropriate efforts with regard to evaluation of the placements offered and kept the CSE informed concerning that matter and her intentions. (T. 49, 474, 477, 478, 479, 480, 481. 482 ; Exs. 1, C, D, E, J, Q The CSE‟s responses were neither appropriate nor timely. (T. 477, Ex. O, F) I conclude that the parents “have not acted with the requisite level of unreasonableness or misconduct that should be denied on equitable grounds.” N.R. ex rel. T. R., 2009 WL 874061, at *7 (quoting Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 55 F. Supp. 2d 420, 437 (S.D. N.Y. 2008) However, as discussed above, /direct payment for what I have concluded is the portion of the is denied.
Order
The DOE shall the , upon documentary evidence of by them, for the student‟s for for the 2009-2010 school year ) to exclude for 30 of the - to and of the to .
Dated: May 31. 2011
Impartial Hearing Officer
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.
DOCUMENTS ENTERED INTO THE RECORD
1 IEP, 6/22/09, 25 pgs. Department of Education
2 Evaluation, 5/17/09, 3 pgs. Department of Education
3 Classroom Observation, 5/20/09, 2 pgs. Department of Education
4 and Eval., 4/6/09, 1 pgs. Department of Education
5 Report, 4/26/09, 1 pg. Department of Education
6 FNR, 6/24/09, 1 pg. Department of Education
7 Declin. of Parent Member, 5/5/09, 1 pg. Department of Education
8 Public School Rosters, 9/9, 10/2009, 2 pgs. Department of Education
9 2009 Rpt Card-(Morning)() 2 pgs. Department of Education
A Impartial Hearing Request, 6/9/10, 4 pgs. Parents
B DOE Answer, 6/14/10 Parents
C Letter from Parent to with Receipt, 4 pgs. Parents
D Letter from Parent to with receipt, 3 pgs. Parents
E Letter from Parent to with receipts, 3 pgs. Parents
F Letter from Parent to with receipt, 2 pgs. Parents
G Letter from Parent to 12/17/19, 2 pgs. Parents
H Assessment Report, 1/25-2/4/07 Parents
I Report, 05/10, 4 pgs. Parents
J Affidavit of , 10/25/10, 1 pg. Parents
K Tuition Contract 2009-2010, 4/26/09, 2 pgs. Parents
L Attendance Record, undated, 1 pg. Parents
M Report May 2009, 4 pgs. Parents
N Class Schedule 2009-2010, undated 1 pg. Parents
O Placement Letter from CSE, 10/7/09, 1 pg. Parents
P Placement letter from CSE, 10/27/09, 1 pg. Parents
Q Placement letter from CSE, 11/18/09, 1 pg. Parents
R School Profile, Public school, April 2010, 3 pgs. Parents
S School Report Card 2009-2010 2 pgs. Parents
T -Description of , undated, 7 pgs. Parents
I Parents Closing Memorandum Impartial Hearing Officer
II DOE Closing Memorandum Impartial Hearing Officer