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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 16, 2012
May 18, 2012
Record Close Date: May 22, 2012
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2012
Attorney — Student
Parents
Parents
Clinical Director, (via telephone) — Student
School Psychologist, Chairperson Designee, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 18, 2012
Attorney — Student
CSE Chairperson Designee — DOE
By Complaint dated December 14, 2011, the matter of Shai W. came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This Complaint alleged, inter alia, that the Student was not provided with a specific school location for 2011-2012 and sought reimbursement for for 2011-2012.
A prehearing conference was held on February 9, 2012. (IHO Exh. 1) On March 1, 2012, the parties sought to extend the decisional timelines because of witness availability. (IHO Exh. 2) This Impartial Hearing Officer (“IHO”) determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to March 27, 2012. (IHO Exh. 2) On March 23, 2012, the parent sought to extend the timelines again because of witness availability. (IHO Exh. 2) 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 this application extending the decision date to April 26, 2012. (IHO Exh. 2) On April 26, 2012, the parent sought to extend the timelines again because of witness availability. (IHO Exh. 2) 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 this application extending the decision date to May 25, 2012. (IHO Exh. 2) The record close date in this matter was May 22, 2012, the date the last transcript was received.
FINDINGS OF FACT
The Student is a diagnosed on the . (21) He is on grade level across the board in academics, though there were weaknesses in terms of phonics. (12) He is reading at a level between level. (12) The Student is . (15) He has , pitch. (17) He engages in (18)
The Student was placed in a mainstream private school for 2010-2011. (127) He was and so the parent contacted the District in or about April/May, 2011. (129) The parent was referred by the District to the ” program, and the District conducted evaluations of the Student over the summer. (136-137)
No IEP was created for the 2011-2012 school year. (137)
The parent called the District to follow up about , but did not receive any response. (138) In early September, the parent received word that the Student had not been accepted to the Nest program. (139) As a result, the parents placed him at and provided notice of same. (139-140; Exh. J)
is comprised of 29 children with . (8) The school uses the Analysis (“ABA”) approach throughout the school day to extinguish negative behaviors and increase positive behaviors. (8-9) They use a math curriculum called Connecting Math Concepts, which has a systematic approach and is research based. (13) The Student is following along with this curriculum. (13-14) They use the Fundations program for writing, which teaches the Student correct letter formation. (14) The Student has mastered lower case letters. (14)
In terms of , they are working on helping the Student play with a peer, with slow progress. (15-16) A curriculum called Social Thinking is used whereby the Student is learning to “sort” , to increase eye contact. (16) They are working on improving his .
(17) is used to reduce . (31-32) Social stories and prompts are used to address elopement issues. (47) The approach is also used, in a group of three. (43)
The class has an ratio, students are from years of age. (20) They are functioning from . (20) They have comparable social skills. (20) Students are mostly diagnosed (21)
The Student receives occupational therapy 2x weekly individually, for “motor groups” a day in a sensory gym, physical therapy 1x weekly, speech and language therapy 3x weekly individually. (23-25)
The Student also receives instruction in terms of . (38) There is individualized instruction. (41)
The school conducted a full ”) of the Student. (46) It was determined that was for the . (108)
The school works to generalize the Student’s skills in the natural environment. (51)
The Student has progressed in terms of mastering sight words, ”) skills, attending to a group, except for . (57-58)
FINDINGS OF FACT AND DECISION
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 may 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 ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), 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).
On the first criterion, the District should show that it offered parents a Free Appropriate Public Education. (“FAPE”) A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the 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 conceded that it denied the Student a FAPE for 2011-2012. (4) On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel M.S. v. Yonkers Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The record indicates that the Student has particular special education needs in behavior and social issues. The record shows that the school provides a wide variety of interventions to address social issues, including an approach. The school has conducted an in terms of and has provided special education interventions in a number of other areas including reading, writing, math. Progress has been noted in numerous academic areas and in behavioral areas. Appropriate mandates of related services have been provided at the school. The District does not argue that the school fails to meet the Student’s special education needs. Instead, the District argues, in a single sentence, that the school is too restrictive an environment for the Student. However, the District does not support this argument with any testimony or evidence or describe what sort of program the parent should have instead sought out. Further, parents are not held to the same standard as Districts in regard to LRE requirements. M.S., 231 F.3d at 105. The parents prevail on the second criterion.
On the third criterion, 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 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 school district with written notice of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I),1412(a)(10)(C)(iv)(IV). 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
The District contends that the parent was not interested in any other program except the program and that such fact precludes the parent from reimbursement. However, the District does not provide any authority for the proposition that such a fact pattern should amount to the denial of a claim. The record shows that the parent fully participated in the process and carefully considered a District school setting. The record does not show that the parent was ever presented with any reasonable options for a specific school location for the 2011-2012 school year. Further, the caselaw suggests that where a District fails to even present a case on the first criterion, equitable considerations should favor the parent unless the parent did not cooperate with the District during the process. N.R. v. The Department of Education of the City School District of the City of New York, 07 Civ. 9648 (S.D.N.Y. March 30, 2009) (Jones, J.). Here, there is no evidence that the parent did anything to frustrate the process. It should be noted that the District did not create an IEP for the Student for the instant school year. The parent prevails on the third criterion is awarded reimbursement for 2011-2012.
Dated: May 25, 2012
_________________________________
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
ML: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 16, 2012
PARENT
A Due Process Complaint, 2/14/11, 2 pages B Overview School, 2011, 2 pages C Enrollment Contract, 2011-2012, 4 pages D Proof of Payment, 2011-2012, 3 pages E Evaluation, 7/27/11, 3 pages F IEP, 7/8/10, 19 pages G . Evaluation, 7/27/11, 10 pages H Request for Reevaluation Letter w/envelope, 8/1/11 and 8/4/11, 2 pages I Letter from Parent to CSE w/cover sheet & fax confirmation, 6/29/11 & 7/3/11,
3 pages J Letter from Parent to CSE w/cover sheet & fax confirmation, 9/9/11, 3 pages K Educational Report, 7/27/11, 5 pages L Results of the , , 8/1/11, 2 pages M Progress Reports from , 2011-2012, 14 pages
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I PHC Order, 2/29/12, 4 pages II Notice of Timelines Extensions, 3 pages