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: July 19, 2013
September 23, 2013
Actual Record Closed Date: October 18, 2013
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2013
Attorney — Student
Parents
Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2013
Parent/Father — Student
School (Via Telephone) — Student
(Via Telephone) — DOE
By Complaint dated May 14, 2013, 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. I was appointed on May 16, 2013.
The matter did not resolve during the resolution period. A prehearing conference was held on June 28, 2013. A hearing date was scheduled for July 1, 2013, but was adjourned at the request of the parties.
A hearing date was held on July 19, 2013. A hearing date held on July 31, 2013 was adjourned at the request of the parent . The hearing was continued on September 23, 2013.
Four timelines extensions were granted in this matter because of witness availability and the need for the Impartial Hearing Officer (IHO) to review the transcript and evidence to render a decision. (IHO Exh. 1)
The Complaint alleges that the District’s Individualized Education Program (IEP) dated May 2, 2012 recommended an for the Student. The parent contended, inter alia, that the Committee on Special Education (CSE) team was improperly composed, that the goals were generic, vague, do not provide a baseline, not measurable, and are not connected to the , that the CSE failed Student to determine her program recommendation ignored input from parents, teachers and providers to the effect that the Student needs a . The parent also contends that the proposed program did not offer the student an appropriate . As a result, the parents seek an order reimbursing the parent for for 2012-2013.
FINDINGS OF FACT
The Student is old who is eligible for services as a Student with a . (Exh. 1)
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 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 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 IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. 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 Second Circuit has recently underscored the importance of writing detailed IEPs that address all of the Student’s academic and social issues. The court indicated that “parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) cert. denied, 2013 WL 1418840 (U.S. June 10, 2013)
The record indicates that this Student requires a . The witnesses from the school indicated as much on the record, and indicated this to the CSE during the IEP meeting. The record indicates that the Student would be “ such as the one proposed by the District. There is nothing in the record from anyone who knows this Student to credibly rebut the assertions of the school staff. There was no observation conducted by the District to dispute the findings of the school staff. The District submitted only three documents in this case and did not assess whether the Student could do well in a . Under the circumstances, I agree with the parent that the CSE should have provided the Student with a See Sudbury v. Mass. Dep’t of Elementary and Secondary Educ., 762 F. Supp.2d 254 (D. Mass 2010); Gellert v. District of Columbia, 435 F. Supp.2d 18 (D.D.C. 2006).
There is nothing in the IEP to indicate what the Student’s “baseline” was in this respect at the start of the school year. I will note that the Second Circuit has recently expressed concerns about goals in IEPs. M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012)(where goals not measurable and too advanced for Student, FAPE denial resulted).
As a result of the foregoing, I agree with the parent that the District denied the Student a FAPE through its May 2, 2012 IEP.
On the second criterion, 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 the Student’s needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The District argues only that the school used some uncertified teachers, but there is no requirement that parental placements employ solely certified teachers. It is noted that District witnesses indicated that is an excellent school. The parent prevails 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 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 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.
The record shows that the parent provided the District with access to the student and generally cooperated with the IEP team. The District argues that the parent made up his mind before the IEP meeting because he made a tuition payment in May, but the evidence suggests that the parent needed to make such payment to secure a placement for the Student should there be an inappropriate program offer. The parent prevails on the third criterion and is awarded tuition reimbursement for 2010-2011 at Preparotory School.
ORDER
As a result of the foregoing, it is hereby ordered that the New York City Department of Education shall reimburse the parents for the sum of $27,650 in tuition paid to Preparatory School for the 2012-2013 school year upon presentation of proof of payment to the school. Dated: November 1, 2013
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
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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 Notice & Request for Transportation, dated 8/22/12, three pages B School Notarized Affidavit, 1/9/13, one page C Fax Tuition 6/12 through 12/12, three pages D Proof of Payment, 2012-2013, nine pages E Attendance, 9/12 to 6/13, one page F Class Schedule, '12-'13, one page G , 5/10/13, one page H Report, 5/15/13, one page I dated 5/16/13, one page
DEPARTMENT OF EDUCATION
1 IEP, dated 5/2/12, 14 pages 2 dated 4/21/11, 7 pages 3 , dated 8/13/12, 1 page
IMPARTIAL HEARING OFFICER
1 , 4 pages