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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: October 23, 2012
November 15, 2012
December 13, 2012
February 28, 2013
Actual Record Closed Date: October 11, 2013
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name
Title
For
Date
Attorney DOE 10/23/12 (T)
11/15/12
12/13/12
02/28/13
DOE 11/15/12
Attorney PARENT 10/23/12
11/15/12
12/13/12
02/28/13
Father PARENT 10/23/12
11/15/12
12/13/12
02/28/13
Mother PARENT 11/15/12
12/13/12
02/28/13
PARENT 12/13/12
PARENT 12/13/12
PARENT 12/13/12
PARENT 12/13/12
PARENT 02/28/13
PARENT 02/28/13
PARENT 02/28/13
On September 16, 2013, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute involving the education program of an ( ) year old student attending a private school and the New York City Department of Education (“DOE”) I was appointed after the impartial hearing had been conducted, solely to write a decision based on the record and after at least one other IHO had recused him or herself from this assignment. Adjournments were granted during the impartial hearing was held on October 23, 2012, November 15, 2012, December 13, 2012 and February 28, 2013. A list of the witnesses who appeared at the hearing and the documents received in evidence is annexed to this decision.
BACKGROUND
The Parents filed a Due Process Complaint (“DPC”) on or about July 24, 2012. (D-15) Therein, the Parents assert that the student is ( ) years old and that the DOE has denied the student a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year. (Id.) The Parents further assert that on June 15, 2012, they provided the DOE with legal “notice” of the student’s unilateral placement in a private school. (Id.) The Parents allege that the student’s Individualized Education Program (“IEP”) dated May 21, 2012 is procedurally and substantively flawed. (Id.) Nevertheless, the Parents assert that they are entitled to ”) for the related services provided for the student therein. (Id.)
The Parents seek the following relief at the impartial hearing:
THE DOE’S CASE
The DOE argues that “This is a simple case about a .” (T-6) A duly composed CSE team reviewed numerous documentation regarding the student and the resulting discussion resulted in the student being classified as having The agency asserts that the Parents were not open to placing the student in any DOE program. (Id.)
The DOE called (2) witnesses to testify on its behalf and submitted (18) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:
THE PARENT’S CASE
On re-direct examination, the witness testified that regardless of what school the student was put in, she would still . (T-483) There was no re-cross examination of the witness. (T-484)
FINDINGS OF FACTS & DECISION
IDEA ensures that students with are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. West, 126 Sect. 528 (2005)) A FAPE includes education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 Sect. 528, 537)
The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerro v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))
The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Volunteer, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))
The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with . (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified education teachers, or have its own IEP for the student. (SRO No. 94-20)
Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:
Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Volunteer Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], off’s, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the Case’s ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a , Appeal No. 04-049).
As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington, supra)
In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gallardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerro v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 O.K. § 1412[a][10][C][ii] and 34 I.E. § 300.148)
I first turn to the issue of whether the DOE offered the student a FAPE for the 2012-2013 school years. As stated above, a FAPE is offered to a student when (a) the DOE 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. (Rowley and Cerro, supra)
Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one education teacher of the student, or, if appropriate, one education provider of the student; (4) a school ; (5) a representative of the school district who is qualified to provide or supervise education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the education teacher/provider, or the school ; (6) an individual who can interpret the instructional implications of results, such as the regular education teacher, the education teacher/provider, the school , the representative of the school district or a person having knowledge or expertise regarding the student as determined by the school district; (7) a school , if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
Here the student’s CSE team on May 21, 2012 was composed of a school acting as the district representative, who served as a education teacher, a nurse, the student, the Parents and the student’s private school staff via telephone. (T-34-5 & 482) The student’s nurse testified that she did not attend the IEP meeting, but the student’s mother affirmed that a nurse did attend the meeting. (T-407, 433 & P-E) The DOE conceded that a “Parent Member” was not present at the meeting and added that he “believes” the Parents waived the presence of the Parent Member when they agreed to continue with the meeting. (T-93 & 956)
8 NYCRR § 200.3(a)(1)(viii) states:
200.3 Committee on education and committee on preschool education.
(a) Each board of education or board of trustees shall appoint:
(1) committees on education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely and placement of students. The membership of each committee shall include, but not be limited to:
(viii) an additional parent member of a student with a residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)
Parents have the right to decline, in writing, the participation of the additional Parent Member at any meeting of the CSE. (See 8 NYCRR 200.5[c][2][v]) Here, no such writing has been received in evidence. Accordingly, I find that the lack of a Parent Member in attendance at the student’s May 21, 2012 CSE team meeting was a procedural violation of New York State law. (See Educ. Law § 4402[1][b][1][a], 8 NYCRR 200.3[a][1][viii], Bd. of Educ. v. R.R., 2006 WL 1441375, at *5 [S.D.N.Y. May 24, 2006], Bd. of Educ. v. Mills, 2005 WL 1618765, at *5 [S.D.N.Y. July 11, 2005] and SRO Nos.: 10-002, 09-078, 09-024, 08-105, 07-120, 07-060 & 05-058) I must now consider whether the lack of an additional Parent Member on the student’s CSE team impeded the student's right to a FAPE. If a procedural violation is found, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits. (See 20 O.K. § 1415[f][3][E][ii]; 34 I.E. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; EX. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])
Here, the student’s mother is a who is described as “very well informed. (T-244) There is ample evidence in the record that the Parent actively participated in the student’s IEP meeting. (T-35, parent attended, T-38, Based on the record before me, I find that despite the absence of a Parent Member at the meeting, the Parent did have an opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. For the reasons stated below, I also find that the student's right to a FAPE was not impeded and that there is no deprivation of educational benefits in this case.
An appropriate educational program begins with an IEP that accurately reflects the results of s to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09)
The IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with . (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132)
Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192 - emphasis added) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008] - emphasis added)
A CSE must consider, among other things, the "results of the initial or most recent " of the student, as well as the " " of the student. (See Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) This includes independent educational s obtained at public expense and private s obtained at private expense, provided that such s meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. (See 34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]) However, consideration does not require substantive discussion. (See T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993] citing G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir.1988]; K.E. v. Indep. Sch. Dist. No 15, 2010 WL2132072, at *19 [D. Minn. May 24, 2010]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009])
Here, the CSE did more than “consider” the student’s s and reports. It actually adopted them. Accordingly, based on the record before me, and for all of the reasons stated above, I must find that the DOE offered the student a FAPE for the 2012-2013 school. Having so found, the necessary inquiry is at an end and I need not determine whether the student’s private school placement was appropriate, or whether equitable considerations bar an award on behalf of the Parents.
NOW therefore, it is hereby
ORDERED that the Parents’ request for relief as detailed in their DPC dated July 24, 2012 is DENIED.
Dated: November 6, 2013
_____________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer
EDL: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 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 RECORD
Number/Letter Title Dated For # of Pages
01 06/15/12 DOE 01
02 Due Process Response 07/26/12 DOE 04
03 IEP Minutes 05/21/12 DOE 01
04 09/22/11 DOE 01
05 09/23/11 DOE 04
06 09/28/11 DOE 03
07 05/07/12 DOE 03
08 10/27/11 DOE 01
09 03/19/10 DOE 06
10 05/20/12 DOE 10
11 09/29/11 DOE 01
12 04/02/12 DOE 01
13 05/20/12 DOE 01
14 04/27/12 DOE 05
15 07/24/12 DOE 07
16 05/21/12 DOE 17
17 05/07/12 DOE 02
18 01/2012 DOE 10