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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 25, 2012
December 4, 2012
January 4, 2013
Actual Record Close Date: January 22, 2013
Hearing Officer: Barbara J. Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2012
Attorney — Student
Parents
Assistant Head-of-School (via telephone) — Student
Attorney — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2012
Attorney — Student
Parents
CSE Coordinator (via telephone) — Student
Teacher, (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2013
Attorney — Student
Parents
Speech Therapist- (via telephone) — Student
Attorney — DOE
This is New York City case #140097. On October 25, 2012, December 4, 2012, and January 4, 2013, I conducted an impartial hearing concerning the special education of . at the New York City Department of Education (DOE), 131 Livingston Street, Brooklyn, New York. , Esq. represented the Mother, and , Esq. represented the New York City Department of Education (DOE). I note that , who identified herself as a new attorney for the DOE, entered the hearing room to observe the hearing, and she was asked to leave. Her name appears on the transcript although she did not participate or observe this impartial hearing. A list of witnesses who testified and documents admitted into evidence is attached to this final decision.
ISSUE
The sole issue before me is whether the Mother has a right to prospective reimbursement for tuition at the ) for the 2012 – 2013 school year.
POSITION OF THE MOTHER
The Mother contends that the DOE did not a “free and appropriate education” (FAPE) for the 2012 – 2013 school year as the “individualized education program” (IEP) developed on May 25, 2012 was procedurally and substantively flawed. In addition, she claims that the offered public school site was not appropriate for . The Mother believes that is an appropriate placement, and that equity favors her claim for direct prospective payment.
POSITION OF THE DOE
The DOE claims that it offered a FAPE to . for the 2012 – 2013 school year. The DOE further contends that the Mother did not establish that offers an appropriate individualized program for On the third criterion, the DOE claims that the Mother did not provide proper ten-day notice or proof that she cannot afford payments at . Lastly, the DOE contends that the contract between the Mother is not legally binding.
FINDINGS OF FACT
. is a fifteen-year old student with an that was previously classified as “mildly retarded.” (Tr. 380, Ex. B at 1) Classification is not an issue in this impartial hearing. A May 11, 2011 update reports WASI scores in the deficient range. (Ex. 5 at 1)
During the 2011 – 2012 school year, the Mother unilaterally placed at Cooke. In reading, currently has a grade instructional level with a second grade word reading level, but she is choosing second grade books to read independently. (Tr. 313) She has writing skills that are at the beginning level. (Tr. 279-280) functions on the upper level in math. (Tr. 131) had previously developed " in that to help her before she would . She is more independent now. (Tr. 316-7)
The CSE reconvened for . on May 25, 2012 to develop an IEP for the 2012 – 2013 school year. The Mother attended this meeting with an advocate from . Ms. , ’s math teacher from , participated in the meeting by speakerphone. She described ’s present levels of performance in math and she proposed new goals for . (Tr. 27) She did not remain on the phone for the entire meeting. The CSE reviewed a psycho-educational evaluation and assessments from (Ex. 4, Ex. 5; Tr. 29-32) The CSE discussed draft goals proposed by the teachers and service providers, adapted them, and adopted them. (Tr. 41-4, 68-72)
Ms. , CSE coordinator, attended this CSE meeting.
MS. : Now it also says someone named participated at the meeting. Did she contribute anything to the meeting?
MS. : She shared the reports from the school, from , and the goals. She shared the draft goals, and of course she discussed the recommendation. (Tr. 26) The Mother never met Ms. before the May 25, 2012 CSE meeting, and she did not invite Ms. to participate in it. (Tr. 422) The CSE meeting lasted about two hours. (Tr. 29, 398)
The May 25, 2012 CSE recommended a District program with a special class with “extended school year” (ESY) summer services to prevent regression, and related services of . (Ex. 2; Tr. 44, 47) Ms. admitted that she was the only person who disagreed with this program recommendation at the May 25, 2012 CSE meeting for . (Tr. 240-41) The Mother believes that a program is an appropriate recommendation for . (Tr. 403)
In the impartial hearing compliant, the Mother alleged that she had voiced her concern that the recommended program was inappropriate, and that her concerns were ignored. I find that the Mother did not voice any concern about the proposed program at the May 25, 2012 CSE meeting as a matter of fact. (See Ex. 1 at 2)
The Mother received a “final notice of recommendation” (FNR) dated June 10, 2012 that provided a class in a specialized school site at . in the Bronx ( ). (Ex. 21) The FNR included counseling, . (Id.) The Mother visited for two hours on July 20, 2012 after which she sent a letter to the DOE rejecting the school site on August 8, 2012. (Ex. H) did not attend during the summer of 2012. (Tr. 401)
The Mother re-enrolled at for the 2012 – 2013 school year where she attends classes this school year. The Mother filed an impartial hearing complaint dated August 7, 2012 through her advocate’s office. (Ex. 1) She seeks prospective reimbursement for the 2012 – 2013 school year at
CONCLUSIONS OF LAW
The Department of Education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the Department of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 (1985). The fact that the private school selected by the parents to provide special education services to the child is not State approved as a school for children with is not dispositive of the parents' claim for reimbursement of tuition. Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
The Mother seeks prospective direct payment to the private school pursuant to Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). The U.S. District Court for the Southern District of New York applied the reasoning and criteria of School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) to grant a request for prospective direct payment when the parents established that they could not afford to pay the tuition. The remedial powers set forth in the IDEA are also applicable to impartial hearing officers in fashioning Burlington/Carter relief. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2494, n.11 (2009)
FIRST CRITERION
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), and establishes annual goals related to those needs. 34 C.F.R. §300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). An IEP should provide for the use of appropriate special education services. 34 C.F.R. §300.320(a)(4); 8 NYCRR 200.4[(d)(2)(iv). See Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9. The IEP must be "reasonably calculated to provide 'meaningful' benefit" to the child. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192. THE MAY 25, 2012 IEP:
The Mother made over four pages of allegations that the May 25, 2012 IEP and the school site at were not appropriate for in the impartial hearing complaint. The Mother did not establish most of these claims in the impartial hearing. In fact, she contradicted some of them with her own testimony. CSE Members:
In the impartial hearing complaint, the Mother made a claim that the May 25, 2012 CSE meeting did not have all mandated participants. She claimed that ’s teacher from Cooke did not attend the full CSE meeting. Ms , ’s math teacher at , participated in the CSE meeting by speakerphone. She described ’s present level of performance in math, and suggested goals for her. (Tr. 27) Ms. deemed her participation sufficient in terms of reporting. (Tr. 259) Ms. got off the phone prior to the end of the CSE meeting. (Tr. 24) Furthermore, Ms. , the DOE CSE representative, testified that does not permit its teachers to stay on the phone for the full meeting. (Tr. 78-9) Ms. is not a DOE employee, and the DOE cannot be responsible if she got off the phone.
The Mother claimed that parent member arrived late and that both the parent member and left the room during portions of the meeting. Ms. explained that the meeting lasted about two hours and that members took bathroom breaks. (Tr. 28, 75)
I find that the May 25, 2012 CSE was properly constituted with all mandated members. Goals:
In the impartial hearing complaint, the Mother alleged numerous violations in the development of the goals on the May 25, 2012 IEP, including that they are: not reasonably calculated to confer educational benefit; not formulated with regard to s’ present level of performance; and did not meet ’s unique needs. (Ex. 1 at 2) The teachers goals that Ms. read to the CSE from her laptop. The CSE discussed these proposed goals, adapted them, and adopted them. Ms. then sent a written version of them to the DOE.
The Mother alleged that she was denied participation in the development of the IEP goals. (Ex. 1 at 3) But then she admitted that the CSE discussed the proposed goals contradicting her complaint allegation. (Tr. 398) All evidence and testimony establishes that the Mother and her advocate had every opportunity to participate in the entire CSE meeting, including the development of the goals. Furthermore, there is no evidence that there were any goals the Mother wanted included in the IEP that were not discussed. Lastly, the complaint suggests that the CSE’s reliance on the goals proposed by was inappropriate. (Ex. 1 at 3) has attended long enough that her teachers and service providers at were best qualified to suggest specific goals for her. It would have been improper if the CSE had not adopted the goals suggested by ’s teachers and service providers at Cooke.
I find that the goals on the May 25, 2012 IEP for were based upon her present level of performance, met her unique needs as they were suggested by her own teachers and service providers, and that they are reasonably calculated to confer educational benefit. I find that the goals on the challenged IEP are appropriate. Placement:
The complaint alleges “the class size and the student to teacher ratio are too large for the student to benefit educationally.” (Ex. 1 at 4) The May 24, 2012 CSE recommended a specialized class for . There was much discussion about the class ratio of ’s classes at . Her English Language Arts class and social studies also have four paraprofessionals assigned to other students for health and focus. (Tr. 276, 278) All of her classes there are , except for math. Her math class has a different teacher-student ratio although I cannot discern its exact ratio as the record as it includes conflicting testimony. Ms. testified that ’s current math class teacher-student ratio was “eight to-sorry, a math ratio. . . And she is currently in an .” (Tr. 197-8, 250) Ms. testified that ’s math class was had a ratio with nine students with only one teacher. (Tr. 122, 130)
Ms. explained that keeps their math classes small:
“So all the lower classmen, sort of a pool of lower classmen, and then we assess them and divide them into groups of eight or nine, depending on their need for math.
So she's regrouped with other lower classmen for math.”
(Tr. 130)
I find that was in a smaller math class because the math classes are smaller than other classes at as a matter of fact. was not in a smaller math class due to any personal need. Ms. was the only one to disagree with the program recommendation at the CSE meeting although she is not ’s teacher or service provider. (Tr. 241, 260) The Mother did not express any objection to the recommended program at the CSE meeting or in this impartial hearing. (Tr. 242. 259) To the contrary, she agreed that a student to teacher ratio is appropriate for in this impartial hearing. (Tr. 403) I find that the CSE recommendation of in all classes is appropriate for .
I find that the Mother’s other numerous allegations concerning the IEP are without merit. I find that the IEP developed for . at the May 25, 2012 CSE meeting was appropriate for her for the 2012 – 2013 school year. IEP IMPLEMENTATION:
The question is whether the DOE offered a school site in which the IEP could be implemented. A basic principle of the IDEA is the development and implementation of an IEP for each eligible student. Subsequent to its development, an IEP must be properly implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087, Application of a Child with a Disability, Appeal No. 09-111. The Second Circuit established:
“The Department’s practice is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or FNR identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it. We have held, however, that the term “educational placement” refers “‘only to the general type of educational program in which a child is placed.’” (cites omitted)
The Department may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP. (emphasis added)
R.E. v. New York City Dep't of Educ., 694 F.3d 167, 191-192
(2d Cir. N.Y. 2012).
In this matter, the DOE deliberately did not present evidence about the recommended school site at . In the DOE’s opening statement, counsel stated:
“Based on the holdings and R.E. v. the New York City Department of Education, the Department will not put on a placement witness for a couple of reasons. First, most of the allegations in the complaint concerning the placement are unrelated to the Department's obligations under the IDEA. Secondly, even those allegations that somewhat reference obligations require the Department's witnesses, the parent, the Hearing Officer to speculate as to the school's ability to implement the IEP. The SRO has held on numerous occasions issues concerning functional grouping and school safety are speculative, but the Court in R.E. definitively stated that "speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." Based on that finding the DOE will only defend the appropriateness of the IEP and that that IEP would have been appropriate and would have been likely to produce progress for .”
(Tr. 7)
While the DOE is correct that it would be improper to present evidence concerning a specific classroom or a particular teacher, it is a misreading of R.E. to assert that the impartial hearing does not have to establish that the IEP can be implemented in the recommended school. The Second Circuit Court of Appeals has consistently required school districts to establish that they can implement the proposed IEP. "(W)e emphasize that we are not holding that school districts have carte blanche to assign a child to a school that cannot satisfy the IEP's requirements." T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. N.Y. 2009) The Court restated this principle in R.E.
The May 25, 2012 CSE for recommended a special class with “extended school year” (ESY) and related services of .
The DOE gave only the barest information about the program at . The FNR indicates a The Mother gave more information about in her documents and testimony. The Mother voiced several different concerns about in her August 8, 2012 letter (Ex. H); in the impartial hearing complaint (Ex. 1); and in her testimony this impartial hearing.
In her August 8, 2012 letter rejecting the Mother expressed concern that the public school is “too restrictive.” (Ex. H) As , the private special education school, is more restrictive than , the public school, I find that this concern is an expression of her mis-understanding of terminology.
The Mother expressed concern that the bathrooms are kept locked “for security” reasons so the students must get someone to unlock them. (Ex. H; Tr. 387-8) This means that they do not go into the bathroom independently. The quality review report for states what it does well, including “(T)he school has created a safe and caring environment. . . “ (Ex. Q at 3) I find that locked bathrooms are part of that safe environment.
The Mother was also concerned that some of the students at have paraprofessionals.
“( ) had a para before and she was with the para, and I had a problem with that. So, when she aged out of the other school I was very happy that when she went into the next school that she wouldn't have that para, so that way she would have to become more independent. So, I did not want her to . . . be in a situation where she saw somebody else with that or she felt that, oh okay, I can digress and go back to and needy.” (Tr. 388-9)
The Mother did not want to see other students with paraprofessionals because she did not want her to “see somebody else having that kind of relationship . . . “ (Tr. 409-11) She did not realize that there are many students at who have one-one paraprofessionals. ’s ELA/social studies teacher testified that four of the twelve students in ’s class this year have paraprofessionals. That is one-third of the class. The Mother admitted that “seems to be okay” despite the paraprofessionals. (Tr. 410) I find the Mother’s argument that she did not want in the public school because she would see other students with one-to-one paraprofessionals to be without merit.
The Mother also objected to because it provides RSAs for some of the related services. (Tr. 391) She did not want to have to “go outside to hire a consultant to supply the missing services” (Ex. H) RSA’s require the parents to locate services, and they make coordination between the school staff and the related service provider more difficult. While I find the use of RSA’s is not a best practice, it has been found to be an acceptable method of providing related services in New York City. Data indicating that a school has not always delivered full related services to its students at the school does not mean that the school would have been unable to provide the services to another student whose IEP is being challenged in a due process proceeding. SRO Appeal No. 11-133.
The Mother expressed concerns related to the development of independence at and transition. offers travel training, and internships although there was no internship on ’s weekly schedule. (Ex. 20) has a vocational program, rather than travel training and an internship program. (Tr. 389-91) Two of the things that does well is provide “an array of school-based and community-based work experiences that support students along a continuum of academic and social independence” and a “major focus of the school is in transitioning students to the world of work . . . To that end, the school has formed partnerships with approximately 11 external work sites . . .” (Ex. Q at 3; Tr. 410)
The Mother wants a more academically oriented program. needs to improve by strengthening “the curriculum to increase rigor in academic tasks in order to cognitively engage all students.” (Q at 4) While academic weakness is a valid concern, is a teenager academic skills and the May 25, 2012 IEP includes appropriate academic goals for her. I find that would help develop independence and provide her with appropriate transition and academic services.
The Mother compared the academic program at with that of the offered public school site, and she was not satisfied with . (Tr. 386) That is not the inquiry in this impartial hearing. The issue is whether can implement the May 25, 2012 IEP. The Mother did not like that the program at does not require students to change classrooms, and she “had a problem with that.” (Tr. 386-7) This concern does not go to the implementation of the IEP.
Essentially, the Mother’s dissatisfaction with the offered public school site is that it is a public school site. The Mother wants to remain at , and that is understandable. She alleged that had been in a collaborative middle school where other students made fun of the special education students in the lunchroom. (Tr. 417-8) The Mother has seen three public schools that are inclusive in the last two years, and she did not like the inclusive nature of any of them. (Tr. 419)
Despite the fact that the DOE did not produce a witness to describe program, I find that I have sufficient information to determine that was able to implement the May 25, 2012 IEP for H. The Mother’s objections to do not rise to the level of an inability to implement the May 25, 2012 IEP.
I find that the DOE has offered a FAPE for the 2012 – 2013 school year. The DOE carried its burden on the first criterion.
SECOND CRITERION
Having found that the New York City Department of Education has carried its burden on the first criterion, I do not have to consider the second or third criteria. See Application of a Child with a Disability, Appeal No. 02-092 But I will do so to complete the record in this case.
With respect to the second criterion of a Burlington/Carter analysis, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Frank G. and Dianne G. v Bd. of Education of Hyde Park, 459 F3d 356 (2d Cir. 2006) In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. "The standards for determining whether a private school placement is 'appropriate' under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement." A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. . . . but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . . “
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112
(2d Cir. 2007)
is a private special education high school for approximately one hundred ten students. (Tr. 251) It provides with small classes with , , and . offers a summer program, although did not attend the program in 2012.
I find that the is also an appropriate school for H. for the 2012 – 2013 school year.
THIRD CRITERION
Again, having found that the DOE offered FAPE, I will consider the third criterion issues to complete the record in this case. The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim. Parents not only carry the burden to establish the appropriateness of their private placement, but they also carry the burden to establish “that equities favor them.” R.E. v. New York City Dep't of Educ., 694 F.3d 167, (2d Cir. 2012). There are three equity issues in this matter.
First, the Mother requested prospective payment to . The U.S. District Court for the Southern District of New York held that prospective direct payment is a valid equitable remedy when the parents establish that they cannot afford to pay the full tuition. Mr. and Mrs. A, 769 F. Supp. 2d 403, 428 (S.D.N.Y. 2011). Parents who request prospective payment generally establish their inability to pay by providing documentary evidence, such as their tax returns, unemployment documents, assistance records, or other financial documents.
In this case, the Mother provided a 1099 Form for the tax year 2011. (Ex. J) This tax form establishes that the Mother is an accounting clerk who had a gross earned income of $101,221. She testified that she had been ill and needed surgery so that her 2012 earned income will be less than her 2011 income. (Tr. 397) Her 2011 tax return also indicates that she had taxable income from refunds, credits, or offsets for an additional $5,319. and a loss of $21,714. from “rental real estate, royalties, partnerships, S corporations, trusts, etc.” (Ex. J at 1) Schedule E that explains the assets that account for this loss is not attached to exhibit J, so this document is left suggesting that the Mother has substantial assets in addition to her earned income.
As the Mother carries the burden to establish her inability to pay, I find that the Mother has not carried that burden. She has not established her inability to pay for Cooke, and she is not entitled to direct or prospective payment of the tuition at for the 2012 – 2013 school year as a conclusion of law.
The second equity issue is that the Mother signed a contract with that does not obligate her to pay anything toward ’s 2012 – 2013 tuition. (Ex. K) I find that the Mother’s letter to the DOE that states: “ is requiring that I sign a contract a(n)d leave a deposit . . . “ is inaccurate. (Ex. I at 1) There was no deposit required in the contract. (Ex. K at 2)
The contract also states: “(P)ayment of the full amount of tuition is due on or before September 30, 2012.” (Ex. K at 2) But there is no payment required if the Mother opts to seek prospective tuition funding from the DOE, as she does in this impartial hearing. (Id.) The Mother did not let anyone at know that she was seeking direct or prospective funding. She could not explain why did not require her to pay the full amount of tuition by September 30, 2012 when she did not notify them that she was pursuing prospective payment. (Tr. 412-13.)
The contract is illusory. The Mother paid nothing and she did not notify the private school that she was pursuing prospective payment. did nothing to obtain payment despite the language of the contract requiring full payment by September 30, 2012 and lack of notification that the Mother would seek prospective funding. When did not receive payment, it did not even question whether the Mother had opted to seek prospective payment from the DOE. Neither party followed the terms of the contract.
The contract is without consideration. There is language that requires the Mother to pay the entire amount in the enrollment contract if she does not prevail in this impartial hearing:
“9. Tuition Funding/ Parent Cooperation . . .
c) In the event that I am denied all or part of direct or “prospective” tuition funding from the DOE for the tuition due under this contract by a final administrative or judicial decision resolving my claim for such funding, I agree to pay the tuition due under this contract within sixty
(60) days of such final decision.”
(Ex. K at 2)
The contract does not require consideration other than the barest promise to perhaps pay at some later time. Furthermore, the contract permits the parent to choose the prospective payment option and pay nothing until sixty days from an adverse “final decision.” As impartial hearing decisions may be appealed to the State Review Office and into Court, this can be a period of years while due process proceedings are pending and the parents pay nothing at all. Essentially, this contract is merely a mechanism to permit payment of an unapproved private school by the DOE.
The Mother testified that she paid $1,000. toward the tuition at for the 2012 – 2013 school year. (Tr. 398, 424) But she did not pay that $1,000. until October 22, 2012 which was three days before the first day of this impartial hearing. (Ex. N) It is a token payment that does not change the analysis on the third criterion.
I find that has permitted the Mother to put on an unofficial scholarship program that might conceivably have to be repaid at some unknown future date. I find that the contract does not obligate the Mother to pay anything, and that equity does not favor the Mother’s claim for prospective “reimbursement” as she has no obligation to pay.
There is a third equity issue relating to ’s staff participation at the May 25, 2012 CSE meeting. Ms. is the CSE coordinator who attends CSE meetings without an invitation from the parents. (Tr. 254) The Mother never met Ms. before the May 25, 2012 CSE meeting, and the Mother did not invite her to attend it. Ms. shows up at CSE meetings although she is not the student’s teacher or service provider. She is there to:
“. . . coordinate that information in order to pass it to the CSE. We have a large educational team and so therefore I will coordinate the information so that it's the most up-to-date to be presented to the--at the CSE IEP meeting.” (Tr. 255)
She serves as a conduit for reports, information, and proposed goals to move from to the CSE.
MS. : Okay. And Ms from the school participated in the meeting.
MS. : That is correct.
MS. : From your direct testimony it sounds like she participated rather extensively, correct?
MS. : Well, she shared with us the reports from the provider and the teachers that were working with . She didn't have any direct relation--she didn't work with directly. She only shared reports from the teachers that weren't able to participate.
(Tr. 56; See also Tr. 26-7) But Ms. exceeded that role when she voiced her own opinion on the placement recommendation for ., and she was the only participant at the CSE meeting to express disagreement with the proposed program. Furthermore, Ms. accompanies parents to public school site visits, and she also reviews quality review reports prior to the visit:
MS. : And I--I reviewed obviously the quality review report from and the special education service delivery report prior to my visit to the school on November 30th. (with another family.) (Tr. 222) She also reviewed the quality review report prior to another site visit to in June 2012 for another student. (Tr. 225, 229) When asked why she participated in public school site visits and reviewed the quality review reports.
MS. Because if I'm going on that-- if--I gather as much information as I can about a given placement. That's one of the channels of information that I can use to gain an understanding of the programmatic offering. (Tr. 256) I find that Ms. over-reached in her participation at the May 25, 2012 CSE meeting for It does not go to equity on the third criterion, but it impacts whether the private school has “clean hands.”
The DOE also argued that the Mother did not give legally sufficient notice of her unilateral placement of at for the 2012 – 2013 school year. Exhibit H gives sufficient timely notice to the DOE. I find this argument to be without merit. CONCLUSION:
The CSE developed an appropriate IEP for . on May 25, 2012, and is a school site that can implement it. The DOE offered a FAPE for . for the 2012 – 2013, and it carried its burden on the first criterion. I completed the record in this matter. On the second criterion, is an appropriate unilateral placement for H. for the 2012 – 2013 school year. On the third criterion, equity does not favor the Mother as she is not bound by the contract and she did not establish that she is entitled to prospective reimbursement.
ORDER:
There is no order in this case. Dated: January 29, 2013
_______________________________
BARBARA J. EBENSTEIN, ESQ.
Impartial Hearing Officer
BJE:jj
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 Hearing Request, 8/7/12, 9 Pp. B IEP, 5/25/12, 19 pp. C IEP, 5/20/11, 18 pp.
D Class Rchedule, 2012, 1 p.
E Progress Report, June 2012, 19 pp.
F Progress Report, 2012, 17 pp.
G Progress Report, March December 2011, 17 pp.
H Parent Correspondence to CSE with Proof of Delivery, 8/8/12, 3 pp.
I Parent Correspondence to CSE with Proof of Delivery, 5/14/12, 3 pp.
J Tax Return, 2011, 6 pp.
K Enrollment Contract, 6/18/12,[2] pp.
L IEP Annual Review Discussion Document from Cooke, 5/25/12, 9 pp.
M Email with Transition Goals, 6/2/12, 7 pp.
N Parent Proof of Tuition Payment, 10/22/12, 1 p.
O Affidavit from , 10/1/12,[1] p.
P Progress Report, 24 pp.
Q Quality Review Report, 9 pp.
R Parents Closing Statement, 12 pp.
DEPARTMENT OF EDUCATION
3 IEP Meeting Notes, 5/25/12, 7 pp.
4 Progress Report with Notes, March 2012,[17] pp.
5 Report, 5/11/11, 7 pp.
6 Vocational Assessment, Undated, 1 p.
7 Social Language Development , 10/26/11, 2 pp.
8 IEP Annual Review Report, 5/25/12, 5 pp.
9 IEP Discussion Document on Speech
10 15 and Language, 5/25/12, 2 pp.
11 IEP Transitional Report, 5/25/12, 5 pp.
12 IEP Discussion Document on Academics, 5/25/12, 7 pp.
13 Certification, 2 pp.
14 Certification,2 pp.
15 Certification,2 pp.
16 Certification, 2 pp.
18 Resume, 1 p.
19 Resume, 1 p.
20 Resume, 2 pp.
20 Rchedule, 2012, 1 p.
21 FNR, 6/19/12, 1 p.
22 DOE Closing Brief, 24 pp.
Footnotes
[1] Due Process Cmplaint, 8/7/12, 7 pp.
[2] IEP, 5/25/12, 24 pp.
[17] Resume, 2 pp.