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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: January 14, 2013
February 27, 2013
Actual Record Closed Date: March 13, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2013
Attorney — Student
Parents
Coordinator of Pupil Personnel Services, (via telephone) — Student
Special Education Teacher, (via telephone) — Student
Attorney — DOE
Attorney — DOE
On January 14, 2013 and February 27, 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 September 4, 2012. (Ex. A) I was appointed Impartial Hearing Officer on September 5, 2012. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on October 21, 2012, the initial hearing was scheduled for November 14, 2012, the first mutually available date for the parties and the hearing officer. (Ex. I)
The parent sought a placement in the ”) for the 2012-2013 school year. (Ex. A) Reese is a non-public school with which the DOE may contract for the provision of special education services (“ ). The student attended during the 2011-2012 school year. The parent asserted that the student was entitled to attend pursuant to applicable pendency provisions until this matter was withdrawn or a final decision was issued. (Ex.
A) The DOE did not contest this claim and provided the placement without an order. (T. 5, 29) Accordingly, the student currently is and has been from the commencement of the 2012-2013 school year. (T. 5)
The current compliance date is April 5, 2013. The record closed on
1 March 13, 2013, upon my receipt of the final transcript.
Background
The student is . That classification is not in dispute. (Ex. A)
1
The parties moved to extend the compliance date on several occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence, delays caused by Hurricane Sandy and expected imminent settlement and hardship resulting from appearance in the circumstances in this matter and for receipt of the transcript and record review. 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. 20,21 27, 33, 35, Ex. II)
For the 2010-2011, the student was enrolled , an , pursuant to CSE placement after the initiation of an impartial hearing request. (T. 108-109)
For the 2011-2012 school year the student was enrolled and his attendance was funded by the DOE on a pendency basis during an impartial hearing concerning the 20112012 school year. A decision in that matter was pending at the commencement of this proceeding. (T. 128)
On June 15, 2012, the CSE had met to develop a program for the 2012-2013 school year and offered a placement at the Performance School, the placement the parent asserts was recommended for the prior two years and which she had rejected as not appropriate. (Ex. A)
On October 9, 2012, the CSE issued another IEP in which it provided all related services on a 12 month basis but made no other changes. (T. 122-123, Ex. 59)
Positions of the Parties
By letter dated September 4, 2013 initiating this hearing, the parent claimed that the June 15, 2012 IEP was procedurally and substantively defective, that the placement was not appropriate and that the DOE failed to provide a FAPE. Further, the parent claimed is appropriate. The parent seeks full DOE funding for the student’s placement there. (T. 31-32, Ex. A) The parent also sought the addition of physical therapy (“PT”) (Ex. A)
The DOE conceded that it failed to provide a FAPE for the 2012-2013 school year. (T. 8-9, 29-30) Further, it declined to assert a position with regard to the appropriateness , stating rather that it was resting on the record of the case, and made no claim that the parent was not entitled as a matter of law to the relief sought. (T. 134135)
Findings of Fact and Conclusions of Law
The information specified in the Background section above is included herein as findings of fact.
The uncontested evidence also shows the following:
The student has a full scale IQ of range) with a significant difference between skills. His reading scores and math scores were reported to be within the average range and he demonstrates age appropriate abilities to understand and process information. He has poor attention skills and requires redirection and refocusing for learning. He is impulsive, benefits from positive reinforcement, breaks and change in activities and is reported to be defiant at times. He likes to socialize with peers and please teachers but can become . The student was diagnosed with and takes . (Ex. 59.1-2) He has been diagnosed with as well with his . (Ex. 59.2) It noted that scores for were within the clinically significant range. (Ex. 59.3) His current sometimes include,
He is mandated to receive services and he functions with in terms of motor, . (Ex. 59.2)
Management needs include small group instruction, concrete, positive reinforcer, breaks (cooling-off period) and a structured setting and intervention works well for him. (Ex. 59.2)
With regard to the , the parent presented the testimony of three witnesses: Coordinatior of Pupil Personnel Services; the student’s mother (“the parent”) I find their testimony credible and note that it was not contested. The DOE presented no witnesses or documents.
The evidence with regard to shows the following:
The school is an and receives referrals from the DOE’s CBST but some parents apply on their own. (T. 42, 50) All students are funded by the DOE, wither through a Nickerson letter or through CBST referral, and students will not be accepted unless funding is in place. (T. 50-51, 55) It has some 90 students, ages 5-13 years old with potential, all with IEPs and classifications of disability. (T. 40-41) The school is ungraded and academic levels range from at or above grade level to up to three grades below in some areas and students are independent with regard to daily living care. (T. 4243, 78) Many students have a behavior component in areas of needs or a social skills deficit but the school does not accept students with significant . (T. 43, 45)
The school currently provides ”), . (T. 41). It has a school wide positive reinforcement system presenting differently depending upon age and class and level of understanding. (T. 43-44) In addition to counseling, a social skills curriculum is incorporated into each classroom. (T. 44) The school has a positive behavior support team which includes a school whcih has been utilized for this student. (T. 90-93)
The student receives , in twice weekly 30 minute sessions. (T. 45-47, 88-90) He is currently in an class of students from with children with similar needs and levels.
(T. 69, 88) His teacher is New York State certified in early childhood and special education. (T. 63) For this student, curriculum is modified, instruction is broken down and provided in small groups based upon academic functioning levels. (T. 65, 70-71, 82-
83) There is a in place for him, a token economy is utilized individually and there is a social skills program. (T. 65-66, 71, 76-77, 83) Opportunities for breaks are provided.
(T. 65) The student’s are addressed in the classroom by various techniques. (T. 73-75) Progress in all academic areas as well as has been demonstrated in the 2012-2013 school year. (T. 85-86)
Accordingly, I find that the evidence shows meets this student’s unique needs as they are set forth in the evidence submitted which includes the CSE’s description of the student’s deficits and strengths. I also note is certified by New York State, employs appropriate methodologies and receives referrals from the CBST for similarly classified students.
Under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). See also Appeal No. 11-117 (n. 31) noting repeated recognition of the “broad discretion” that must be employed when fashioning equitable relief.
In the circumstances here, which include the DOE’s concession that a FAPE was not provided, I conclude that the parent is entitled to full DOE funding for the 20122013 school year. In view of this finding I do not consider any claim based upon a Burlington/Carter analysis.[2] However, I note my finding that: 1) the parent has established that the placement is reasonably calculated to enable the student to make meaningful educational gains and is tailored to meet his unique needs; 2) there is no basis for denying or limiting DOE funding based upon equitable considerations.
With regard to the parents request for , however, I note that there have been no formal evaluations with regard which the student has been receiving since September 2012 pursuant to pendency. (T. 130-131) I find the evidence insufficient at this time to establish either that is required or, if so, the extent of the service that should be provided. (T. 115-117, 127, Ex. 66)
ORDER
1) The student is entitled to for the 2012-2013 school year at DOE expense. The DOE shall immediately issue an authorization for that enrollment or otherwise provide funding.
2) The CSE shall reconvene and upon the student’s IEP for the 2012-2013 school year.
3) Within three (3) weeks of issuance of this order the CSE will conduct evaluation and, at the parent’s request after receipt of that evaluation, reconvene within two weeks of the request to consider the inclusion of on the student’s IEP. Dated: March 18, 2013
________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer 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] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)
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
PARENT
1 Demand for due process hearing, 9/4/12, 4 pages 2 DOE due process response, 9/6/12, 4 pages 3 2012/2013 IEP with , and .justification form, 9/25/12, 18 pp. 4 2012/2013 IEP, 6/15/12, 11 pages
5-9 WITHDRAWN
10 Letter to , 9/4/12, 2 pages 11 CSE recommendation, 8/14/12, 1 page 12 Request consent to re-evaluate 2/7/12, 1 page 13 Letter to whom it may concern from , 2/7/12, 1 page
14-26 WITHDRAWN
27 evaluation, 9/19/12, 5 pages 28 Year-end report, June 2012, 7 pages 29 progress report, 6/15/12, 3 pages 30 progress report, 6/1/12, 5 pages 31 intervention strategies report, February 2012, 5 pages 32 progress report, 1/15/12, 3 pages 33 therapy progress report, 1/13/12, 3 pages 34 Educational progress report, December 2011, 7 pages 35 Year-end report, June 2011, 7 pages 36 IEP goal progress report, June 2011, 3 pages 37 progress report, 6/15/11, 2 pages 38 progress report, 6/12/11, 2 pages 39 evaluation, 6/4/11, 5 pages 40 summary, 1/21/11, 5 pages 41 Educational progress report, January 2011, 7 pages 42 OT progress report, 1/10/11, 1 page 43 progress report, 1/10/11, 2 pages 44 consult report- Dr. , 7/1/10, 1 page 45 Physical education report card comments, 5/15/10, 1 page 46 Child progress and planning report, 5/12/10, 2 pages 47 quarterly progress report, 5/11/10, 1 page 48 quarterly progress report, 5/5/10, 1 page 49 Caregiver-teacher report form, 2/3/10, 2 pages 50 evaluation, 10/20/09, 15 pages 51 consult report-Dr. , 2/20/09, 2 pages 52 Program Description, undated, 2 pages 53 Student Weekly Schedule, undated, 1 page 54 Attendance Card, 2012/2013, 1 page 55 Physical Therapist Certification,1 page 56 Occupational Therapist Certification, 1 page 57 Letter re: Certification, 1/14/11, 1 page 58 Parent Tax Return Forms, 2011, 15 pages 59 2012/2013 IEP, 10/1/12, 13 pages 60 Justification, 9/27/12, 2 pages 61 , 9/25/12, 1 page 62 , 9/25/12, 2 pages 63 Educational Progress Report, January 2013, 5 pages 64 Progress Report, 1/15/13, 3 pages 65 Progress Report, 1/17/13, 3 pages 66 Physical Therapy Progress Report, January 2013, 2 pages
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I Prehearing Conference Memo, 1 page II Compliance Date Extension decisions
Footnotes
[2] That concerns the legal standard applicable to a request for reimbursement for unilaterally selected 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)