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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: September 25, 2013
October 28, 2013
Actual Record Closed Date: November 15, 2013
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2013
Mother — Student
Student
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2013
Parents
Student
Witness (Via Telephone) — Student
By Complaint dated July 29, 2013, the matter of Jahmier L. 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.
The pro se Complaint alleges that the District’s program was inappropriate because it provided the Student with (IHO Exh. 1)
The matter did not resolve through resolution. On September 17, 2013, a prehearing conference was held. There were no appearances. A hearing date was held on September 25, 2013. The parent appeared, but there was no appearance by the District.
Another hearing date was held on October 28, 2013. Upon the application of the parent on September 25, 2013, the decision date in this matter was ordered to be reset to November 10, 2013. The reason given was the need for the parent to obtain legal representation. Thereafter, upon the application of the district on the 12th of November, 2013, the decision date in this matter was ordered to be reset to December 12, 2013. The reason given was the need for the Impartial Hearing Officer (IHO) to review the transcript and evidence to render a decision. For both these extensions, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that these were appropriate matters for extension. There was also no showing of any financial or other consequences to the parties or to the . There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is boy who is eligible to receive services as a
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 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 Individuals with Disabilities Education Act (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 District presented no witnesses and no evidence in this matter, in effect conceding that it denied the Student a FAPE. As a result, I turn to the second criterion.
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 special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
There is authority within this Circuit that awards direct payment to parents who have enrolled their children at a private school but have not paid any tuition. Mr. And Mrs. A v. New York City Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011)(payment ordered to Rebecca School). There is also authority that affords hearing officers and courts the right to direct payment to a particular school to insure that Students receive FAPE. Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Disability, Appeal No. 08-103 n.9.
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 District did not object to the parent’s request on equities. The record indicates that the parent participated in the process and allowed the District to the Student. The parent prevails on the third criterion.
ORDER
As a result of the foregoing, the District is hereby ordered to pay tuition to the School for the Student for the remainder of the 2013-2014 school year. Dated: December 2, 2013
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL:gc
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 , 6 pages B C , 2 pages D F , 4 pages G dated 7/12/13. 5 pages H dated 10/24/13, 1 page I Documents, 7 pages J IEP dated 5/15/13, 10 pages K Omitted L IEP dated 2/9/13, 10 pages