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: Parent
Date of Hearing: October 14, 2011
December 2, 2011
January 13, 2012
Actual Record Close Date: January 23, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 14, 2011
For the Student:
Attorney
For the Board of Education:
, CSE , Chairperson's Designee (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 2, 2011
For the Student:
Attorney
parent
(via telephone)
Science Teacher (via telephone) (via telephone)
For the Board of Education: District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 13, 2012
For the Student:
Attorney
parent
Teacher, (via telephone)
Teacher, (via telephone)
For the Board of Education:
, District Rep.
By Complaint dated August 22, 2011, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review s program for 2011-2012, and to request tuition reimbursement for for 2011-2011-2012.
The District conceded that it had offered the Student an inappropriate program and placement. (36) During a hearing on stay-put issues, the parties moved to extend the decision date because of witness availability. (12-13) This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to December 5, 2011. The parent then sought to extend the timelines on December 2, 2011 on witness availability. There was no objection from the District. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii), adjourned the case and granted the extension of the decision date to January 4, 2012. On December 30, 2012, the parent sought to extend the timelines again because of witness availability and to prepare for the upcoming hearing date. There was no objection from the District. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to February 3, 2012. (IHO Exh. 1) A final extension was requested by the parent on February 3, 2012 due to extensive testimony and issues. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension to February 6, 2012. (IHO Exh. 1)
FINDINGS OF FACT
The student is a old classified as a student with . a . The Student has time. (30) He can have with . (41) He has . (44) He has . (103)
The school is a general education “inclusion” school with a minority of Students containing (24) A of the children in the school have . (24-25) These children are placed in the program. (24) The Students meet their teache at 8am for 40 minutes for organizational purposes; then they meet with them after school rom 3:15pm to 4pm. (25-26) They meet with them as a group. (25) On Fridays, they see the teacher two times a week individually to start the most difficult homework. (26) The teacher will give specific recommendations to the parent. (27) The teacher will advocate for the Student, mentor the Student, insure that accommodations are being met for the Student. (27-29) Certain children are in the “ITP” program, whereby the Student gets “half” the program. (31) The Student will go to the program on either the morning or the afternoon and will see the teacher individually once a week. (30-31, 100) This is the program that is in. (30-31) The program is provided to students to encourage and independence. (101) will come to the group sessions once or twice a week. (103) The teacher will break his material into chunks, help him with graphic organizers. (103-104) He will use a special education strategy called to help with reading comprehension. (104) He will also talk with the . (107)
In the general education curriculum, children are given additional time to take tests. (41) Students are given modifications to the curriculum. (107) The pace of the Science class is geared so that children with issues can understand. (41-42) are used in Science and economics. (44, 105) The Student benefits from the in the class. (47) The Student also benefits from a . (114) The Student has had great success at the school. (61, 86-87)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("prong one,") the services selected by the parent are appropriate ("prong two"), and equitable considerations support the parent's claim ("prong three"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
To meet the burden on the first prong, the District must show that it has offered a Free Appropriate Public Education, the District must show that it complied with the procedural requirements in the IDEA, and that the IEP is reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982) While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District concedes on the first prong.
On the second prong, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address ’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The record shows that the ITP program at provides the Student with a variety of special education services to meet the Student’s special education needs. The teacher provides the Student with organizational cues, will break his material into chunks, help him with graphic organizers. The teacher provides with a special education strategy called to help with . He will also talk with the . (107)
In the general education curriculum, additional accommodations are provided. is given additional time to take tests, there are modifications to the curriculum, the pace of the class is slow so that children like with with issues can understand. Moreover, the record indicates that the Student has had great success at the school.
The District presents no witnesses or even argument in opposition save a brief closing statement indicating that any award should correspond only to the services provided through the program. However, the record shows that the entirety of the program is geared toward ’s special education needs. See NY State Review Officer Dec. No. 10-101 (awarding tuition reimbursement for ITP program at York Prep, including general education portion of tuition). The parent prevails on the second prong.
On the third prong, 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. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if 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 school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.
Courts indicate that, where a District fails to offer a placement for a particular school year, equitable considerations should not bar reimbursement. N.R. on behalf of T.R. v. Department of Education of the City School Dist. of the City of New York, 52 IDELR 92 (S.D.N.Y. 2009). Moreover, the record indicates that the parents complied with all District demands and requests and provided the District with appropriate notices here. The parent prevail on the third criterion and are awarded reimbursement for services provided for 2011-2012.
Dated: February 6, 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 Decision by Hearing Officer , 4/20/11, 15 pp.
B Hearing Complaint, 8/22/11, 5 pp.
C IEP, 2/7/2011, 17 pp.
D Evaluation, 3/16/2011, 10 pp.
E Letter, 1/5/2011, 1 p.
F Parent's Letter, 2/22/2011, 2 pp.
G Parent's Letter, 6/8/2011, 2 pp.
H Parent's Letter, 7/20/2011, 3 pp.
I School Contract, 2/5/2011, 4 pp.
J Proof of Payment, 1 p.
K Invoice, 2/2010/2011, 1 p.
L Report Card 2010-2011 4th Quarter, 6/14/2011, 1 p.
M Report Card 2011-2012 1st Quarter, 11/1/2011, 1 p.
N Report Card, 1/6/12, 1 p.
IMPARTIAL HEARING OFFICER
1 Emails and Forms Re: Extension