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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: September 10, 2012
November 30, 2012
January 14, 2013
April 19, 2013
Actual Record Closed Date: May 17, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 10, 2012
Esq. Attorney — Parents
District Representative — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2012
Esq. Attorney — Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2013
Esq. Attorney — Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2013
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
(by telephone) — Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 19, 2013
Esq. Attorney — Parents
Mother — Parents
Parents
(via telephone)
DOE
On September 10, 2012, November 30, 2012, January 14, 2013, February 28, 2013, March 13, 2013 and April 19, 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 special education program of XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated August 31, 2012. (Ex. A) I was appointed Impartial Hearing Officer on September 4, 2012. I was available to conduct a hearing within 14 days.
An Interim Order on Pendency which provided attendance at (“ ”) at DOE expense through the pendency of this proceeding was issued on September 14, 2012. (Ex. III) The parents’ claim with regard to pendency was not disputed by the DOE. (T. 5)
At a prehearing conference conducted on October 17, 2012, the initial hearing was scheduled for November 30, 2012, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 10, Ex. I) 1At that hearing, both parties requested an adjournment due to the unavailability or their witnesses on the date of the hearing as a consequence of a joint misunderstanding. (T. 11-13) Hearings were
The parties requested extension of the initial compliance date in this matter on various occasions in light of anticipated testimony, the scheduling of witnesses, the submission of evidence and to receive all transcripts. 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 in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions were provided to the parties. (T. 10, 21-22, 43, 50-5, 123, 127-128 Ex. II) .
The current compliance date is June 14, 2013. The record closed on May 15, 2013, upon my receipt of the final transcript. (T. 127-128)
1 Adjournments were granted at the November 30, 2012 and January 14, 2013 hearings due to the unavailability of any witnesses due to a joint misunderstanding by the parties and a hearing officer emergency, respectively. (T. 11-13, 20) At the February 28, 2013 hearing, an adjournment was granted at the request of the DOE to enable it to be represented and to provide subpoenaed documents to the parents material for the presentation of the parents’ case. (T. 38-39) At the February 28, 2013 hearing, the DOE conceded that it failed to provide a FAPE and the testimony of the parents’ witnesses commenced. (T. 51)
Background
At the commencement of the 2012-2013 school year, the student was and was classified as . (Ex. 1) That classification .
The convened on May 10, 2012 and recommended a District ( ) placement ( ) with (“ ”) ( ( ) and ( ), both ); (“ ”)( ( ) and ( )); (“ ”) ( ( )); ( ( ) and ( ), both ). (Exs. 1, 6, 7)
By letter dated June 8, 2012, the recommended a placement at a school in . (Ex. 7)
In June 2012, the parent visited the recommended placement and by letters dated June 21, 2012 and August 20, 2012, informed the that she the and were . (Exs. F, G)
The parents unilaterally enrolled the student in , a school which is not approved by the as a school with a district may contract for the delivery of , by contract executed September 1, 2013. (Exs. G, H)
Positions of the Parties
The parents assert that the to provide a free appropriate public education for the 2012-2013 school year and that the appropriate. They seek reimbursement for the entirety of tuition that placement and assert that there are no equitable consideration which would . (T. 165-168)
The DOE has not disputed the parents’ claim that a FAPE was not provided but that for this student and, further, that the . (T. 51, 163-165) Cases Presented The DOE presented no witnesses but submitted documents, list appended.
The parents submitted documents, list appended, and the testimony of the following witnesses:
Mother (“the parent”) testified that the student commenced receiving services ( and ) from the age of about , attended a ( ), receiving , and , from about to age and attended with and the addition of to provide to about . (T. 55-57) She was enrolled in when she was about and has continued there. (T. 27) The parent stated that the student required a , and . (T. 57, 62) At in the classroom and the parent stated that the student benefited from that approach. . (T. 63) The parent stated that the student and that the had that but . (T. 64-65) However, she acknowledged that the and . (T. 81) The student has and it is in her and and . (T. 70) At , the student receives and and and utilized throughout the school day. (T. 83-84) The parent twice informed the program and placement and received . (T. 74-75, Exs. F,
G) The student would have attended a if an and program was offered. (T. 76) Tuition at for the 2012-2013 school year is $92,500 and the parents have made payments. (T. 77-78, Exs. H, K, L)
( ”), at , is a teacher with years experience in who is trained in . (T. 89-90) She testified that utilizes with and in its program and has about students ranging in age from to . (T. 89-90, 121, Ex. I) She observes the student at least per week for varying times. (T. 91) She described the student as and and with , and and who has a and . (T. 92, 94, 104, 106) The student is in a class of students, years old and and and grade for and , with classroom teacher (with a ) and a teacher (each with degree) for student. (T. 92-94, 114-115) Instructors are required to follow the programs created for the student but create their own materials and the teacher and and provides the instruction, among other things. (T. 115, 119) The student received instruction in all areas. (T. 94) and are also provided (T. 95) is utilized for all and . (T. 96, 112, 117) The student has and in the 2012-2013 school year.. (T. 96-97, 98-99, Ex. J) taught with a and through a and . (T. 97-98) programs have been developed to and has been made this school year. (T. 99-100, 104-105, Ex. J) The programs are based upon and by , the and the . (T. 101) is provided times a week ( sessions) and times daily ( minute sessions) in a and that is necessary to , and and the student has in the current school year. (T.102-103, 107, 118, Ex. J) The student received times weekly ( sessions) and a program developed by her provider is run and she has . (T. 106-107, 118) Collaboration between the related and the is ongoing and includes meetings, and by the providers. (T. 107-10, 119) Informal is incorporated in the programs through and the was utilized for formal . (T. 110-114) Instructors for the student are varied to provide . (T. 115)
, is licensed with years of experience and multiple certifications in areas including () and ( . (T. 131-132) She provides the student’s individual OT and works with her at times during groups. (T. 114) She also provides training and , including to this student, and participates in with regard to the student. (T. 133, 144-145) The is required for this student to and as well as and , , , and and . (T. 135-138, 155-158) Specific programs have been develop for and the student . (T. 138-143, 145146, 147, 150-151, 159-160) A large gym has a variety of specialized equipment and classroom staff for her. (T. 143) staff includes , , an ,a who is trained, and the classroom staff and staff meet routinely. (T. 152-153)
Findings of Fact and Conclusions of Law
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 the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]
Prong 1
The DOE has conceded that it did not provide a FAPE. (T. 51)
Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
For the reasons discussed herein below, the parents have established that the placement is appropriate. I find the witnesses credible and the evidence in this matter, set forth above, shows that her and is . Indeed, the acknowledged in its IEP that the student’s , her and that she has , , , and and, further, noted the need for , and and . (Ex. 1; see also Ex 8) The provided goals which are consistent with goals. (Exs. 1, J) The school observation is with the testimony of the witnesses with regard to the student’s and . (Ex. 3) The evidence shows that the student’s and . Further, although the recommended a program, it is noteworthy that the DOE did not present any witnesses in support of its recommendations. I also note that the the student had made, referenced by the , .
The sole objections asserted by the DOE with regard to the parents’ placement were that the instructors , the of provided creates and and there is opportunity provided. There were no claims based upon the of made and I note with regard to that issue that the noted that the student is “ and .” (Ex. 2) Similarly, although no claims were made based upon differences in the configuration of related services, I find in the circumstances here, where a program has been provided, those differences are not significant. With regard to the claims the DOE has made, it is well established that the of teachers does not require a determination that a placement is . Carter. Further, the coordinator teacher, the classroom teacher has training and the evidence shows routine and substantial staff collaboration. With regard to , parents are not held to the same requirements as the district and, in any event, there is no indication that this student or in this school year. Frank G. With regard to the DOE’s claims relating to , I note that the evidence is persuasive that this student to and that .
Accordingly, the parents have met their burden with regard to the placement they selected.
Prong 3
The evidence shows that the parents cooperated with the with regard to the development of the IEP, visited the school and timely communicated their to the and the school. There is nothing in the record indicating that they were unreasonable in their interactions with the . The DOE’s sole claim with regard to the equities is that the parent’s consideration of the placement was because she to which she . (T.
164) However, a parents’ preference for another placement, if that is the case, and/or even entering into a contract with a school is not dispositive of a claim for reimbursement. Application of a Child with a Disability, Appeal No. 05-087. Further, I note that the DOE presented no evidence indicating that the parent’s objection to the school was unwarranted in this case and that the school was appropriate. I find no basis for a denial or limitation of DOE funding because of equitable considerations in this matter.
Order
The DOE shall reimburse the parents for the student’s placement at for the 2012-2013 school for an amount not to exceed $92,500 upon submission of proof of parental payment.
Dated: May 28, 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 http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
A , 8/31/12, 4 pgs. Parents
B , 1/27/09, 14 pgs. Parents
C , 9/6/12, 3 pgs. Parents
D , 4/2/12, 2 pgs. Parents
E , 6/6/12, 2 pgs. Parents
F , 6/21/12, 4 pgs. Parents
G , 8/20/12, 4 pgs. Parents
H , 2012-2013, 7 pgs. Parents
I , undated, 2 pgs. Parents
J , 2012-2013, 9 pgs. Parents
K , various dates, 4 pgs. Parents
L , various dates, 2 pgs. Parents
1 , 5/10/12, 14 pgs. Department of Education
2 , 5/10/12, 2 pgs. Department of Education
3 , 3/29/13, 2 pgs. Department of Education
4 , 1/25/12, 1 pg. Department of Education
5 , 3/20/12, 5 pgs. Department of Education
6 , 6/16/12, 1 pg. Department of Education
7 , 6/18/12, 1 pg. Department of Education
8 , 4/4/11, 5 pgs. Department of Education
9 , 5/1012. 2 pgs. Department of Education
10 , 5/10/12, 1 pg. Department of Education
I Impartial Hearing Officer
II Impartial Hearing Officer
III , 9/14/12 Impartial Hearing Officer
IV Impartial Hearing Officer