New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 1, 2011

December 16, 2011

January 9, 2012

Actual Record Close Date: March 4, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 1, 2011

For the Student:

Attorney

For the Department of Education:

CSE- Chairperson Designee

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 16, 2011

For the Student:

Attorney

parent

For the Department of Education:

CSE- Chairperson Designee

Witness

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 9, 2012

For the Student:

Attorney

parent

Special Education Itinerant Teacher

Student

For the Department of Education:

Designee-CSE

The matter of . (hereinafter “the student”) came before me for determination on November 1, 2011, December 16, 2011, and January 9, 2012, in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(b)(2), and Article 89 of the Education Act of the State of New York. The hearing was requested by the parents on September 6, 2011. I was assigned this matter on September 7, 2011. The compliance date was extended as a result of requests for additional hearing dates in order for the parties to prepare and present their cases and for the submission of briefs. Additional time was necessary for a full, fair disclosure of the facts required to arrive at a decision in this matter. The record close date is March 4, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

At the time of the request, was a year old pre-school student with a of student with a by the New York City Department of Education (hereinafter “DOE”) at a review meeting held on February 11, 2011. The recommended with related services ( ), ( ), ( , ( ) and ( ). On April 12, 2011, a review was held and a recommendation ( hours), a and related services.

In a due process notice dated, September 6, 2011, the parent through her attorney, alleged that the CSE committed both procedural and substantive errors in creating the student’s Individualized Education Services Program (hereinafter “IESP”) for the 2011-2012 school year, failed to provide equitable services. The parents continued their son’s placement at for the 2011-2012 school year and are seeking reimbursement for hours of ( ), ( ) and ( ).

THE POSITION OF THE PARTIES

The District representative, Dr. , maintained that the Department of Education (DOE) offered the student appropriate services which would meet his , needs for the 2011-2012 school year.

The parents’ attorney, , Esq., maintained the DOE failed to provide equitable services to the student for the 2011-2012 school year, that the and related services were appropriate, and that the equities favored the parents, and that reimbursement should be ordered.

DEPARTMENT OF EDUCATION’S CASE

The DOE’s representative, , presented the following documents, inter alia, IESP (Exh. 1), Evaluation (Exh. 3), Report, Report and Educational Report (Exh. 4, 5, 6). at , testified that she is responsible for evaluating children, and during an April 12 meeting an IESP was developed (Tr. at 20). She stated that she offered the student and that are “ ” once the student turns (Tr. at 27). She further stated that a was recommended because the student had , and , and was (Tr. at 27-28). She stated that she used information from progress reports, teacher interview, and reports and the report (Tr. at 28-29).

On cross, she stated that the student was not tested because there was “a lot of paperwork” and “a lot of feedback” (Tr. at 39-40). She stated that she did not recall discussing the student’s program 41). She further stated that she only remembered the discussion regarding the student’s (Tr. at 42). She stated that she “never have been able to continue service” and she was “not familiar with as a recommendation” (Tr. at 51, 52).

PARENT’S CASE

The parent’s attorney , presented the following documents, inter alia, Educational Progress Report (Exh. C), Parent’s Letter to CSE (Exh. A, B). , , stated that she holds a Master’s in and is licensed and certified by New York State (Tr. at 66). She stated that the student is in environments, but is (Tr. at 68). She opined that the student needs times a week over on a month basis (Tr. at 72-74). She stated that she works on improving the student’s , and (Tr. at 73). testified that she holds a Masters in special education and is licensed in special education (Tr. at 88). She stated that she works with the student in his class at . She stated that the student has and (Tr. at 90-91). She further stated that the student “ at about a year old” (tr. at 91).

She stated that she prepared a report, and was interviewed by Ms. (Tr. at 93). She further stated that when Ms. visited the school she agreed with her recommendation that the services continue (Tr. at 96). She stated that she works with the student in the classroom and sometimes does pull-outs, she conferences with the classroom teacher beforehand to familiarize him with the concepts being taught, , works with , and (Tr. at 98-100). She opined that the program is appropriate and the student has made progress in the mainstream program, , as well (Tr. at 104,106). She further opined that a month program was necessary because she observed (Tr. at 107-8).

On cross, she stated that the student class is made up of olds with the same (Tr. at 119-120).

The parent testified that during the April 12th meeting Ms. informed her that neither she nor the Board would be able to continue the because her son was . She stated that she informed her of the service providers’ opinion regarding the continuation of her son’s current program(Tr. at 134). She further stated that Ms. informed her the most she could do was offer hours of and that she saw the student “needed the most he could get” (Tr. at 136).

An Educational Progress Report described the student has in and , , skills, and / skills (Exh. 6). The report recommends that the student continue receiving and related services.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the Department of Education failed to provide . equitable services for the 2011-2012 school year.

New York State law provides:

“…[T]he committee on special education of the school district of location …shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Educ. Law § 3602-c(2)(b)(1) [emphasis added]. “The paramount principle that guides State law is concern for a handicapped child's educational needs, whether in public or private school” and that students “are to be afforded suitable educational opportunities according to their individual needs.” Bd. of Educ. v. Wieder, 72 N.Y.2d 174, 186 (1988).

Here, the evidence presented supports the continuation of the services recommended by the February 11, 2011 IEP given the student’s significant delays. (Exhs. 4-6).

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 parent were appropriate, and equitable considerations support the parents’ claim (Sch. Comm. Of Burlington v. Dep’t of Ed., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71); Gagliardo, 489 F. 3d. at 111). “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 US at 370-71). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, App. No. 94-20). Parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (M.S. v. Bd. Of Ed, 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).

The restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. Of Ed., 231 F.3d at 105; the test for a parental placement is that it is appropriate, not that it is perfect (Warren G. V. Cumberland Co. Sch. Dist., 190 F.3d 80, 84(3 Cir. 1999). The parent presented credible evidence that the services provided by and related service providers were appropriate and conferred educational benefit specially designed to address the student’s , , and . The District did not present any witnesses or evidence to contradict any of the statements of the parents or their witnesses. The parent prevails on the second criterion.

A determination must be made as to whether equitable considerations require the DOE to reimburse services costs for the 2011-2012 school year. An impartial hearing officer has “broad discretion in considering the equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112.

The IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the District with written notice of such information ten business days before such removal, and a reduction or denial of reimbursement is discretionary. 20 U.S.C § 1412(a)(10)(C)(iii)(I) and 20 U.S.C. § 1412(a)(C)(iv)(IV), Application of a Child with a Disability, Appeal No. 04-071.

Here, the record reflects that the parent fully cooperated with the DOE. The mother participated in the April 2011 IESP review. The parent also notified the DOE that she disagreed with the change in services, did not receive the IESP and wanted to discuss the Final Notice she received, but did not receive a response from the DOE (Exhs. A, B).

Based on the record before me, the equities weigh in favor of the parents and the DOE shall reimburse the parents for the ( X ), ( X ), ( X ), ( X ), and and ( X ).

SO ORDERED

ORDERED, the Department of Education shall reimburse the parents or directly fund within 15 days of the parents’ submission of proof of payment or vouchers.

Dated: March 13, 2012

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Parent's Letter to CSE, 5/19/11, 2 pp.

B Parent's Fax to CSE, 8/9/11, 3 pp.

C Educational Progress Report, 11/15/11, 4 pp.

DEPARTMENT OF EDUCATION

1 IESP, 4/12/11, 11 pp.

2 Declination Letter, 4/12/11, 1 p.

3 Evaluation, 10/18/09, 9 pp.

4 Progress Report, 2/10/11, 1 p.

5 rogress Report, 2/23/11, 1 p.

6 Educational Progress Report, 2/15/11, 5 pp.