Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 26, 2013

October 1, 2013

December 3, 2013

Actual Record Closed Date: December 18, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 26, 2013

, Attorney Parent

Mother

CSE Representative Dept. of Education

Via telephone Dept. of Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 1, 2013

Attorney Parent

Mother

Teacher for Prep Parent

Chairperson’s Designee Dept. of Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2013

Attorney Parent

Mother

Parent

Dept. of Education

The matter of came for hearing before me on August 26, 2013, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2). On June 25, 2013, I was appointed as impartial hearing officer. On August 23, 2013, I scheduled this hearing for August 26, 2013. The hearing commenced on August 26, 2013, and continued on October 1, 2013 and concluded on December 3, 2013. The parties moved to extend the compliance dates during the course of the hearing. 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 to present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the joint requests for extensions of the compliance dates were granted (trans. 23;28;139-141; Exhs. I-IV). The last compliance date was extended as a result of the request for post-hearing submissions (trans. 141; Exh. IV). The parent’s representative submitted his post-hearing closing statement on December 18, 2013 and the district’s representative submitted her post-hearing closing date on December 18, 2013. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section (“§”) 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (“CSE”). The hearing was initiated by the parents of who challenge the May 30, 2012, review and recommendation of the CSE.

The parent unilaterally placed her son in the Program, a special education program located in the Preparatory School ( Prep). Prep is a private school located in It is a private Department approval. parent funded this placement from September 2012, through June 2013 and now seeks tuition reimbursement for the 2012-2013 school year.

BACKGROUND

is an year-old boy who was in the grade at Prep for the 2012-2013 school year, failed to provide a free and appropriate public education (“FAPE”) and so she placed at Prep. The parent submitted an Affidavit from Prep indicating the parents paid $22,285.50 (Exh. F) dated January 9, 2013 with a balance due of $10,102.50 and indicating that total tuition was $38,675. The parent testified that the tuition for the 2012-2013 was paid in full (trans. 121) and submitted a post-hearing exhibit proof of payment of $10,161.46 (Exh J).

THE DOE’S CASE

The District’s case was presented in the testimony of , a general education teacher assigned to testified that he was a special education and a general education teacher employed by the for the past years and employed by the DOE for the past years and that he was the holder of (trans. 6-7). He stated that he sat on the May 30, 2012 IEP team meeting as general and he recalled that then current teacher, , who participated by telephone and his parent and the and a parent member were present for the review (trans. 9). He recalled that the

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education.” See 20 U.S.C. Section 1400(d)(1)(A). Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 (1982). As for the program itself, 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. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement Id. at 130. The student's recommended program must also be provided in the least restrictive environment See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.550(b); 8 NYCRR §200.6(a)(1). Also, a FAPE must be available to an eligible student “who needs special education and related services even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” See 34 C.F.R. § 300.101( c)(1); 8 NYCRR § 200.4(c)(5).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).

An appropriate educational program begins with an IEP that accurately reflects the results of to identify the student’s needs, 34 C.F.R. § 300.32(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special educational services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law §4404[1][c].

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, 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 parent’s claim. See School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

The parent’s attorney asserted that the parent and Prep staff who participated via teleconference was not provided with the same material as all the other CSE participants (Id.). I credit the parent’s testimony that she participated by at the May 30, 2012 meeting by telephone, did not receive a copy of the January 6, 2011 (Exh. 3) and did not have access to it during the meeting (trans. 123). Telephone conferencing of participants is permitted, provided that individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. (Application of a Child with a , Appeal No. 00-043). I find that the DOE failed to establish that the Prep staff and the parent who participating by telephone had access to the same material available to DOE employed CSE members.

The parent’s attorney asserted that the parent was denied the opportunity to meaningfully participate in the May 30, 2012 IEP and that the CSE failed to consider all the programs available on the DOE Continuum of Services per 8 NYCRR 200.6 (Id.).

While school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 (2d Cir. 2003). A procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) The denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parent's opportunity to participate in the IEP formation process. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, (S.D.N.Y., 2005). The district representative asserted that the IEP meeting on May 30, 2012 provided FAPE and the parent was provided with a meaningful opportunity to participate the recommended an appropriate program in the least restrictive environment and a timely and appropriate site was offered (Exh. VI at 1)

The district representative asserted that the was appropriate, yet did not call a witness The parent’s attorney argued that the “DOE failed to elicit any testimony that the May 30, 2012 could be implemented in the recommended placement” (Exh. V at 4). The parent’s attorney argued that the DOE’s reliance on “R.E. v. New York City Dept. of Ed., 694 F.3d 167 (2d Cir. 2012) its prior decision in T.Y. v. New York City Department of Education, (584 F.3d 412 (2d Cir. 2009) and the District Court’s decision in K.L. v. New York City Department of Education, (2012 U.D. Dist. LEXIS 124460, at *35.)” was “meritless and reflect a fundamental misunderstanding of the cited case law ”(Exh. V at 4). The parent’s attorney argued that “R.E. does not foreclose a parents from challenging the appropriateness of the DOE’s recommended placement, nor does it foreclose a finding that FAPE was denied where the school was not able or willing to implement the IEP’s mandates” (Id.). I agree and find that that only providing the parent with an FNR would result in the same ‘bait and switch’ that the Court condemned in R.E.

The parent’s attorney asserted that he CSE team failed to include any necessary or current information regarding and does not provide any baseline from which to work (Exh. V at 2). The parent’s attorney further asserted that the goals were developed subsequent to the meeting (Id.).

I find that the goals were drafted without parent participation and were not formulated with regard to present level of performance and neither the goals nor the IEP were reasonably calculated to confer educational benefit and did not address unique special education needs. I credit the parent’s testimony that the goals were not discussed and I find the goals were developed after the IEP meeting and I credit the testimony of the district witness who stated that the find the goals were developed after the meeting (trans. 18). I further find the IEP goals were developed without regard to present level of performance and were developed without the parent’s participation. I find the related service goals were developed without regard to present level of performance and were developed without the parent’s participation.

I credit the parent’s testimony that she voiced her concerns that I find that the district failed to establish that the parent meaningfully participated the decision making process. I find the lack of CSE to support the program significantly impeded the parent’s opportunity to participate in the decision making process. Therefore, I find the district failed to establish that FAPE was provided during the 2012-2013 school year The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a child” Gagliardo, 489 F.3d 115. Testimony by the parent and the Prep and evidence submitted by the parent established that the parent met her burden regarding the unilateral placement of .

I find that the equitable factors supported the parent’s claim for reimbursement. The record was replete with the parent’s efforts to cooperate. The parent participated and attended all meetings and repeatedly requested an appropriate placement (Exh. C). I find the parent established the third prong of the Burlington/Carter analysis. Therefore, I find the parents are entitled to reimbursement for $38,675.

ORDER

I order that the DOE shall provide tuition reimbursement to the parents for the 2012-2013 school year in the amount of $38,675, upon proof of payment acceptable to the DOE.

Dated: December 27, 2013

_______________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA;mv

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 AUGUST 26, 2013

1 IEP, 5/30/12, 11 pp. District

I Decision on Request for Extension, 8/26/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 1, 2013

A Impartial Hearing Request, 1/21/13, 6 pp. Parent

B Notice and Request for Transportation, 8/22/12, 2 pp. Parent

C Parents’ Response to FNR, 8/12/12, 2 pp. Parent

D Letter to parent from CSE Chairperson, 9/19/12, 1 p. Parent

E Program Overview, 2012-2013, 1 p. Parent

F Payment Affidavit, 1/9/13, 1 p. Parent

G Prep Enrollment Contract, 3/26/12, 1 p. Parent

H Prep Student Schedule for 2012/2013, undated, 1 p. Parent

I Prep Card for 2012/2013, 1 p. Parent

II Decision on Request for Extension, 10/1/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 3, 2013

III Decision on Request for Extension, 10/8/13, 1 p. IHO

IV Decision on Request for Extension, 12/3/13, 1 p. IHO

POST HEARING SUBMISSIONS

2 FNR, 8/8/12, 1 p. (unintentionally omitted on 8/26/13) District

3 , 1/6/12, 5 pp.

(Unintentionally omitted on 8/26/13) District

J Proof of Payment, various dates, 3 pp. Parent

V ,12/18/13, 10 pp. IHO

VI , 12/18/13, 4 pp. IHO