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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: August 8, 2013
August 27, 2013
Actual Record Closed Date: September 13, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2013
Gloria Bruzzano, Esq. Aorney — Parents
Elana Glasser Legal Intern — Parents
Mother — Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 27, 2013
Neal Rosenberg, Esq. Aorney — Parents
Mother — Parents
Coordinator-Legacy Program, H.S. — Parents
District Representative — DOE
Teacher Assigned — DOE
On August 8, 2013 and August 27, 2013, 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 education program of XXX (“the student”). The parents seek reimbursement for the student’s unilateral 2012-2013 school year placement at School (“ ”). (Ex. M)
The proceeding was initiated at the request of the parent by correspondence dated May 17, 2013. (Exs. M, I)[1] I was appointed Impartial Hearing Officer on May 17, 2013. (Ex. I) I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on June 17, 2013, the initial hearing was scheduled for July 23, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. That hearing was thereafter adjourned and the August 8 hearing and subsequently the August 27 hearing were scheduled.[2] (T. 6-8, 37, Ex. I)
The initial compliance date in this maer was July 29, 2013. The parties moved to extend the compliance date on two occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and to provide an opportunity to review the transcript. 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 and to provide for consideration of those positions in accordance with the requirements of due process was greater than the consequences of any additional delay in the resolution of this maer. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 7, 21, 38, 109, Ex. II)
The current compliance date is September 27, 2013. The record closed on September 13, 2013, upon my receipt of the final transcript.
Background 3
The student was years old and entering the at the commencement of the 20122013 school year ( ) and his classification was (T. 124, Ex. 1) That classification is not in dispute. He had aended . (T. 205) The student’s 2012-2013 program at that school included academic classes which could go up to various additional support classes and participation in mainstream classes with students. (T. 113, 134-135)
The CSE had convened on May 1, 2013 (“the review”). For the 2012-2013 school year it recommended a in a community school with related services
By leer dated August 8, 2012, the CSE recommended a placement at a community high school in Queens. (Ex. 4)
By leer dated August 22, 2012, the student’s mother (“the parent”) stated that she was “again” asserting that the student need a program in a education school, that she had aempted to contact the school for a visit but had received no response and would visit in September. She requested a class profile of the other students. The parent informed the CSE that until she could determine the appropriateness of that school, the student would aend and tuition reimbursement would be sought. (T. 209, Ex. D)
After unsuccessful aempts to visit the school during the summer and repeated unsuccessful efforts when school opened, the parent without appointment visited on September 24, 2012, toured the school the next day and concluded that the school was not appropriate. (T. 210-211, Ex. E)
By leer dated October 3, 2012, she informed the CSE that the school was too large, that of other students could impact the , that a significant part of his program would be in mainstream classes and that she was shown classes and provided with information indicating that the school would not properly implement the IEP with regard to both academic program and related service mandates. She informed the CSE that the student would continue to aend . (Ex. E)
By contract dated July 20, 2012, the parents had enrolled the student at . (Ex. I) The contract provided, among other things, that fees were not refundable but that if the student was withdrawn during the school year, the parents were responsible for tuition for The specifications in this section are included herein as Findings of Fact. each month of enrollment and that refunds pursuant to the specifications in the contract would be made if tuition had been paid. (Ex. I) The parents made various payments commencing July 24, 2012. (Exs. J, K, L)
The impartial hearing request that commenced the instant proceeding was dated May 17, 2013 and received at the DOE’s Impartial Hearing Office on the same date. (Ex. M)
Positions of the Parties
The parents assert procedural and substantive errors with regard to the May 1, 2012 IEP, specifically referencing the CSE’s composition, inappropriate/inadequate goals and a failure to discuss them at the CSE and inadequate consideration of relevant documentation as well as a program recommendation which was not appropriate. Further, the parents claim that the recommended placement was not appropriate, specifically asserting that the school was in disarray due to administrative changes, had a school population too large for this student and that the IEP would not be appropriately implemented with regard to the students in the classes and the class program which would be provided. The parents claim that program they provided at was appropriate and that there are no equitable factors that warrant denial or reduction of reimbursement of $38,182, the amount of their total payment for which they seek reimbursement. (T. 2833, 224, 234-237, Ex. M)
The DOE asserts that the IEP was properly developed, that there were no procedural or substantive defects and that the recommended school could implement the IEP and was appropriate. Further, the DOE claims that was not appropriate and that, in any event, the equities do not favor the parents in this maer. (T. 22-29)
Cases Presented
Lists of documents in evidence are appended.
The DOE presented the testimony of one witness: a DOE education teacher who participated in the May 1, 20112 CSE review.
The parents presented the testimony of two witnesses: Coordinator of Legacy programs at ; the student’s mother.
Findings of Fact and Conclusions of Law
The information specified in the background section is included herein as Findings of Fact. Further factual findings are stated below. Record references not specified below are stated above.
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services 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). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)
Prong 1
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of s to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate education services (Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
was the district’s sole witness regarding whether it provided a FAPE. and the parent also provided information concerning the CSE review, the student’s needs and/or the placement. The credible evidence shows that:
is a education teacher who taught a public high school education class for years prior to the last when she has been assigned to the CSE. (T. 51-52) She never met the student and was designated as the district representative for the review. (T. 52-53, 72, Ex.
1) Also present was a CSE school , (director of the student’s program at and a provider to him), who participated by telephone, and the parent. (T. 54) was the only person who worked directly with the student. (T. 53 70, 142) The CSE’s recommendation was for a . (T. 56, 86-89) opined that the was appropriate in view of the student which affected all academic areas . (T. 66) The DOE participants had no role in selecting the placement and had no knowledge of it. (T. 67)
The evidence shows that in making its recommendation the CSE relied upon information provided by the school as well as reports. (T. 57, 102, Ex. 2) The information from the school included verbal information from , a teacher checklist reporting the student’s a report card. (T. 122, 124, 199, Ex. 3) The IEP reported for reading and based upon information provided by school staff. (T. 124) The student’s record was also available at the review but could not recall which, if any, documents were consulted from it. (T. 72-75) No documents from the student’s prior record were provided to and he could recall no documents other than those sent to the CSE by the school being discussed although the IEP references a 2009 private . (T. 122-123, Ex. 1) and the parent were able to provide their opinions with regard to classification and all recommendations but for their opinion with regard to the specific goals being recommended by the CSE which they were not informed. (T. 57, 144. 195, 211-202) informed the CSE that the student benefited from a second adult in the classroom but was informed that the DOE had so that was the only thing the CSE could provide. (T. 144145, 171)
)[4]
Procedural Defect Claims
The parents claim various procedural defects which resulted in an IEP which was defective. With regard to those claims I find as follows:
The parents assert that the CSE was invalidly composed because the there was no education teacher participant. They point to the aendance list which specifies only as the district representative, does not specify a DOE education teacher and has as the sole participant who was not a education teacher. However, the persuasive evidence shows that was an experienced education teacher and that her participation was the same as it would have been had she been specifically designated as the education teacher representative. (T. 101) I conclude that there is nothing to indicate that she lacked adequate knowledge of the education options and issues for this student and that that information was provided to the CSE. Further, was the coordinator of the program and testified as to ongoing communications with the student’s teachers, familiarity with the student’s program and knowledge of the , including those in the academic area and shared that information with the CSE. (T. 116, 125, 138, 143, 151, 159) I find no procedural violation in the circumstances here. Further, even were I to conclude that a procedural violation occurred, I find that in the circumstances here that error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040. See also e.g. A.H. v. The Department of Education of the City of New York, 394 Fed Appx. 718, U.S. App LEXIS 17193
The parent also claims material was considered by the CSE which was not provided to all the participants. The sole support for that claim is the inclusion in the IEP of information apparently provided by a . (Ex. 1-1) indicated that he had no knowledge with regard to that . (T. 122-123) I note that the accuracy of the report (which is not in the record) and the CSE’s description of its contents has not been disputed in this proceeding. Further, in the circumstances here, I conclude that the CSE relied principally upon the information provided by and that the information specified, although not inconsistent with the CSE’s recommendation, was background only. I note that in her testimony did not indicate any reliance upon or recollection of that report. (T. 72-75) I find the failure to provide all participants with all information reviewed by the CSE in the circumstances here did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.
The parents also make various claims concerning the goals including that they lack adequate baselines to and inappropriate in view of the student’s .
An IEP must include a wrien statement of measurable annual goals, including academic and designed to meet the student's needs that result from the student's to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student's other educational needs that result from the student's (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the commiee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3]). Appeal No. 11-043.
For the reasons discussed below, I conclude that any procedural defects that occurred with regard to the goals are not a basis for invalidating the IEP in the circumstances here.
Although the evidence shows that the student’s were discussed, I find credible and undisputed that the actual goals placed on the IEP were not discussed at the review.
(T. 173-174, 206) However, the failure to discuss the specific goals is not a basis for a conclusion of procedural defect if they are otherwise satisfactory. Appeal No. 11-040.
In the instant maer, the evidence shows that the goals were as provided by the student’s at . I find no basis for a claim that they could not be understood or applied by a in the recommended placement and note that acknowledged that the techniques referenced are commonly known in the profession. (T.196-197) There was no testimony that other goals should have been included. I find no basis for a conclusion that the goals were inadequate or not appropriate.
The evidence establishes that the speech goals specified in the IEP were provided by the student’s . I find no basis for a conclusion that those goals as wrien were not appropriate. However, that also recommended the inclusion of additional goals which were discussed at the review but were not included. No explanation for that omission has been provided. (T. 92-93, Ex. 2) It is also noteworthy, however, that there has been no testimony supporting the necessity of including them.
With regard to the academic goals, it was acknowledged by that the goals themselves did not include any baselines upon which progress could be determined and lacked certain specificity. (T. 77-79) With regard to that issue, however, I note that the IEP included the functioning levels of the student, as provided by , and further, that credibly testified as to routine classroom teacher techniques for determining a student’s baseline levels. (T. 97-98) The evidence shows that the reading goal was aligned with the student’s needs and . Appeal No. 11-055) Indeed, it was consistent with what was addressed by in the 2012-2013 school year. (T. 186) I also note that certain goals also addressed ssues. The situation is otherwise with regard to the . I find persuasive the testimony that the (T. 178-180) However, as noted above, the defect would be readily determinable by a classroom teacher and the procedure for correcting it was expeditious and not onerous. (T.100, 106)[5]
Upon consideration of the foregoing, I conclude that although there were procedural defects with regard to goals those defects, whether considered alone or aggregated with such procedural deficiencies as have been claimed in this proceeding did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4])
Substantive Defect Claims
It is well established that “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F. 3d at 190. In the instant maer, the persuasive evidence shows that the CSE, based upon information provided by the school as to the student’s , concluded that would enable the student to make meaningful educational gains. No documentary evidence inconsistent with that conclusion has been presented. Further, the testimony of is not inconsistent with it. Although testified that the student benefited from the some of his classes and that he so informed the CSE, he did not opine in this proceeding that this student could not make meaningful educational gains in the program recommended and there is no indication that he specifically told that to the CSE.
(T. 143) Further, had no personal knowledge as to how that program functioned generally or in the placement proposed. (T. 192 ) The testimony of the parent related principally to her objections to the placement. I conclude that the record does not rebut the conclusion of the CSE that at the time of the review, albeit perhaps as a result of the program he had previously received, the program it proposed would enable meaningful educational gains.
Placement Claims
The parent asserts that the DOE has failed to establish that the placement offered was appropriate and would implement the program recommended. The Second Circuit has made clear that certain considerations with regard to a placement which a student has not aended are speculative in nature and therefore not a basis for conclusions that a district failed to provide a FAPE. R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167 (2d Cir.
2012) Further, I am mindful that the State Review Officer has recently held that when the parent has rejected the proposed placement and unilaterally placed the student prior to IEP implementation, the mere fact that a district has not presented any evidence with regard implementation in the placement proposed is not a basis for a determination that the provision of a FAPE has not been established. Appeal No. 12-228. I also note that with regard to the implementation of a student’s IEP, a denial of a FAPE occurs only if the district deviates from a substantial or significant provision of the student’s IEP in a material way and thereby precludes the student from an opportunity to receive educational benefits. See Appeal No. 12-098 and the cases cited therein. The testimony of the parent with regard to her observations and conversations does not indicate that that occurred in this maer. (T. 212-213, 231)
In the foregoing circumstances, I conclude that the DOE has met its burden to demonstrate that it provided a program reasonably calculated to enable the student o make meaningful education gains. Accordingly, I do not address Prong 2 and Prong 3 issues except to note that I found the testimony of and the parent credible.
ORDER
For the reasons discussed above, this maer is DISMISSED.
Dated: September 27, 2013
_____________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at hp://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
D. day Notice with Fax confirm., 8/22/12, 2 pgs. E Follow up leer to CSE with fax confirm., 5 pgs. Parents F Description, undated, 1 pg. Parents G Stud. Sched., 2012-2013 school year, 1 pg. Parents H Report Card 2012-2013 school year, 1 pg. Parents I Contract, 2012-2013, 2 pgs. Parents J Affidavit of payment, 4/18/13, 1 pgs. Parents K Statement of Payment, 4/17/13, 1 pg. Parents L Proof of Payment, 2012-2013, 6 pgs. Parents M Impartial Hearing Request, 5/17/13 Parents I Various e-mails concerning scheduling Impartial Hearing Officer II Compliance Date extension decisions Impartial Hearing officer III Prehearing Conf. memo, 1 pg. Impartial Hearing Officer (10 pages; Parents)
Footnotes
[1] The parents submitted as “Ex. A” a hearing request dated January 7, 2012 in error and transmitted to the Impartial Hearing Office by fax on January 16, 2013. That hearing request is substantially similar if not identical but for date to the request initiating this hearing which is in evidence as Ex. M. The record is unclear as to the disposition of that earlier letter. (T. 108-109)
[2] A copy of my initial appointment and emails concerning scheduling and related matters is attached as Ex. I. (T. 8-20, 37)
[4] The hearing request did not include a claim that the program provided was not in the least restrictive environment and/or that there were defects arising from the fact that no mainstream classes were provided in the IEP. (Ex. M; see also T. 225-226) Accordingly, a claim based upon that will not be considered.
[5] Reference to the possibility of changing goals, which is the case even if goals are appropriate but subsequently mastered, is not to support the IEP with retrospective evidence but solely to clarify my conclusion with regard to the weight of any defect.