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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: January 7, 2013
January 18, 2013
Actual Record Closed Date: February 4, 2013
Hearing Officer: Craig Tessler, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2013
Attorney — Student
Director, Via Telephone — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2013
ESQ., Attorney (Via Telephone) — Student
INTRODUCTION
On December 3, 2012, after recusal by another hearing officer, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on January 7 and 18, 2013. Lists of persons in attendance and documents received in evidence are appended to the record.
The decision deadline was extended at the parent’s request on December 3 and 7, 2012, and January 7, 2013, because of the unavailability of witnesses and the requirements of due process, in order for the parties to present and complete their case. [1] Before granting the extension requests, I determined that granting them would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension requests were not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.
BACKGROUND
old student, who attends the (“ ”), a non-approved private program. On November 22, 2011, ’s parent requested in writing that the Committees on Special Education (CSE) evaluate and review her educational needs (Exh. J); a second request for evaluation was made on March 13, 2012 (Exh. K). On June 13, 2012, the department of education conducted a Evaluation (Exhs. O, L). On September 21, 2012, Susan J. Deedy, Esq., attorney for ’s parents, requested the instant hearing (Exh. B), alleging, inter alia, that the department of education failed to offer Free and Appropriate Public Education (FAPE) to for 2011/12 and 2012/13, because: the CSE did not act upon the parent’s referral and timely evaluate , and did not hold a review for 2011/12; the CSE failed to conduct evaluation; and the CSE did not conduct a review for 2012/13. The hearing request seeks tuition reimbursement or direct payment of ’s 2011/12 and 2012/13 tuition, provision of related services, and transportation.
On January 7, 2013, the CSE held a review and issued an Individualized Education Program (IEP) (Exh. 1) recommending classification with a , and placement in a special class in a community school, with therapy twice per week for 30 minutes and once per week for 30 minutes , therapy (“ ) twice per week for 30 minutes , and counseling twice per week for 30 minutes
On January 7, 2013, the CSE representative acknowledged that the department of education failed to offer FAPE for 2011/12 and 2012/13
THE PARENT’s CASE
The Evaluation dated June 13, 2012 (Exh. L), notes that exhibited and , and that a was requested. During the evaluation, had good attention and was motivated, but , worked at a , required much attention and support, and required questions repeated and clarified. On the WISC-IV, achieved in full-scale IQ, perceptual reasoning, working memory, and processing speed, and scores on subtests in the verbal comprehension domain. On WIAT-III achievement tests, exhibited academic delays in reading, writing, math, and spelling skills; she was delayed about comprehension, numerical operations, and reasoning. , presented as pleasant and well-behaved, and interacted appropriately, but she has , and requires much support.
, Ph.D., testified that he has advanced degrees in speech and language therapy, special education and administration, and has been Educational Director of for 32 years; his duties include admissions, program development, supervision and student observations. Dr. stated that programs are for students with a broad spectrum of ; programs are housed in mainstream yeshivas and are supervised by a site coordinator with a special education license, classes are 8/9:1:1, teachers have special education certification, and all related service providers have appropriate licenses. attends a program at , a mainstream program for students in kindergarten to 8th grade, with two mainstream classes per grade, and four self contained classes; is in a grade class. When entered the program as a grade student in November, 2011, she was anxious, had poor attention, and did not perform well. exhibited and required intervention to and acquire sufficient confidence to learn; she had a to the , and required several months to feel secure enough to start learning. Dr. visited ’s class several times per month, and had frequent communication with the teacher and special education site coordinator. All the students in ’s 2011/12 and 2012/13 classes functioned about level. The program prepares an IEP for each student, with methods and objectives for each academic area (Exh. N), and issues two progress reports per year (Exh. M). Standardized reading and math tests are administered at the end of the year. In November, 2011, ’s reading was at a level; with interventions such as scaffolding, modeling, and guided help, has progressed to an grade reading level. During 2012/13, is able to do more independent work, and makes more appropriate responses to corrections. In November, 2011, ’s math was at a late third grade level; she has progressed to a late fourth grade math level. Dr. stated that has made some progress in her . ’s skills improved: she is more attentive to others, can do up to 15 minutes of independent work, and is more responsive to her teacher. receives and therapy, and , twice per week. Dr. testified that during both 2011/12 and 2012/13, about 19% of the school day was devoted to religious text and prayer (Exhs. E, I). Lunch and recess periods are with mainstream classes.
The 2011/12 tuition, excluding fees, but including cost of related services, was $40,000 (Exh. G). The 2012/13 tuition is $41,750 (Exh. C). The parent submitted Forms 1040 indicating adjusted gross income of $5,325 for 2010 (Exh. P), and $2,923 for 2009 (Exh. Q).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find that should be classified as a student with a , and that her parent has met the burden of showing that he is entitled to reimbursement for ’s 2011/12 and 2012/13 tuition at because he has shown to be an appropriate site for , the CSE failed to recommend an appropriate program or placement for her, and equitable considerations support a tuition award. The award for 2011/12 shall be limited to that portion of the school year after the date by which the CSE should have evaluated and developed an IEP for her, and the award for both years shall be limited to that portion of the tuition paid for the secular part of ’s education.
A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-
01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education 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, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). 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'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (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]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018). In Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 (1993), the Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the State Education Agency pursuant to IDEA. This decision expands the Court’s decision in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which held that court may order reimbursement to parents who disagree with a proposed IEP and unilaterally place their child in a private school. Such a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that:
(1) the public placement violates the IDEA; and (2) the private placement is proper and is reasonable calculated to enable the child to receive educational benefits. The Court must also consider equitable factors, such as communication and cooperation between the parent and the school board, the parent’s awareness of and timely exercise of due process rights, and the appropriate and reasonable level of reimbursement.
The CSE admitted on the record that it did not offer FAPE to for 2011/12 and 2012/13. I find that the CSE failed to timely evaluate and develop an IEP for . 8 NYCRR 200.4(b) provides that a school district must evaluate a student within 60 days of a parent’s initial referral, and 8 NYCRR 200.4(e)(1) provides that the student’s IEP must be implemented within 60 days of the parent’s initial referral. ’s parent referred her to the CSE on November 22, 2011; pursuant to the regulations, the CSE should have completed evaluations by January 21, 2012, and should have been ready to implement an IEP for on or about February 28, 2012. The CSE did not evaluate until June 13, 2012, and did not issue an IEP until January 7, 2013. Even the evaluation that was done was incomplete: the Evaluation noted that evaluation was required, but none was done. No explanation was offered for these , which constituted a complete abrogation of the CSE’s obligation. The CSE’s failure is unfathomable and unconscionable.
I find that the CSE’s (very late) recommendation to classify as is appropriate. 8 NYCRR 200.1(zz) defines a as:
“…a disorder in one or more of the processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as . The term does not include that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.”
The department’s Report, and the testimony of Dr. , indicate that has a , which manifests itself in . I conclude that is properly classified as .
I also find that ’s parent met the Carter requirements for tuition reimbursement As stated above, the CSE failed to recommend an appropriate classification, program and placement for for 2011/12 and 2012/13. I find that the is appropriate for , even though it is not a State Education Department-approved program. I find that has significant difficulties with reading comprehension, math, language, attention, social skills, and self-esteem. I find that she requires a . offers a supportive, structured class environment, with a small student to teacher ratio, individual attention, and small group activities. The program offers intense, language-based, multi-modal instruction, and has a strong social skills component. The pace of learning is geared to ’s needs, and the other students in ’s classes are of similar age, abilities and needs as . The program offers mainstream opportunities, so can . Teachers and related service providers are appropriately certified/licensed, and staff regularly monitors students’ progress and modifies their programs as necessary. Related service providers coordinate their programs with classroom teachers. There are frequent team meetings and parent communication. The record indicates that has made academic and social progress. The program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress; it provides an education in substantial compliance with all the substantive requirements of IDEA.
I find that equitable considerations also support an award of tuition. I find that ’s parent cooperated and communicated with the CSE, that he made a timely hearing request, and that the amount of reimbursement requested is reasonable.
I conclude that ’s parent is entitled to tuition reimbursement. However, reimbursement must be limited to the amount paid for the secular part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that P’TACH’s part-religious curriculum does not preclude an award of tuition reimbursement. The record indicates that about one-fifth of ’s school day is devoted to religious instruction; therefore the parent shall be reimbursed for 80% of the cost of ’s program, exclusive of any fees or contributions.
With regard to the 2011/12 school year, the tuition award must be further limited to that part of the school year after the date by which the CSE should have evaluated and developed an IEP for her, 60 school days after the parent’s initial referral: the initial referral was November 22, 2011, and I find that the CSE should have been ready to implement an IEP for by February 28, 2012. I conclude that the parent is entitled to 40% of the secular portion of the 2011/12 tuition.
The hearing request poses a final issue, because the parent argues that he is entitled to prospective tuition funding; i.e., that the Department of Education should pay directly for ’s tuition, notwithstanding the fact that Burlington and Carter are couched in terms of reimbursement. In D.A. vs. N.Y.C. Dept of Education , 09-CIV-5097 (SDNY, 2/1/11), the Court held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents. In Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” (Id. 806) The Court also notes that it is “beyond cavil” that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), held that the IDEA can compel a school district to disburse funds for the student’s tuition at a private school, and awarded a preliminary injunction ordering the district to “…make whatever financial arrangements are necessary…” to implement a hearing officer’s decision and place the student in a nonState-approved private school.
I find the D. A., Connors and Sabatini decisions persuasive and conclude that the Department of Education may be required to directly or prospectively pay tuition to a non-approved private program after the Burlington/Carter tests are met, and the parent has shown by clear and convincing evidence that he or she cannot afford to pay tuition “up front.” However, I find that in this case ’s parent has not submitted clear and convincing evidence regarding the claim that the family cannot pay the tuition. The parent submitted forms 1040 for 2009 and 2010; none was submitted for 2011, and no testimony or other explanation was offered regarding the family’s income and financial circumstances. I find this evidence insufficient and conclude that the tuition award must be in the form of reimbursement to the parent, rather than direct payment to
ORDER
IT IS THEREFORE ORDERED THAT: a) shall be classified as learning disabled; and b) upon presentation of proper proof of payment, 's parent shall be reimbursed for: (i) 80% of the cost of 's 2012/13 tuition at , exclusive of any scholarships, fees or contributions, in an amount no greater than $33,400, and (ii) 80% of the cost of ’s 2011/12 tuition, exclusive of any scholarships, fees or contributions, as pro-rated for 40% of the school year, in an amount not to exceed $12,800. Dated: February 14, 2013
_______________________
CRAIG TESSLER, ESQ.
Impartial Hearing Officer CT;mv
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 Notice of Rejection 9/11/12, 4 pages
B Hearing Request 9/21/12, 6 pages
C Tuition Contract 2012-2013 9/13/12, 1 page
D Attendance Record 9/17/12, 1 page
E Class Schedule 2012-2013 Undated, 1 page
F Program Description 2012-2013 Undated, 1 page
G Tuition Contract, 2011-2012 11/30/11, 2 pages
H Attendance Record 6/30/12, 1 page
I Class Schedule 2011-2012 Undated, 1 page
J Letter from the Parent 11/22/11, 2 pages
K Second Request 3/13/12, 3 pages
L Eval, 6/13/12, 1 page
M School Progress Report, 6/13/12,[1] page
N IEP, November 2012, 2 pages
O Social History, 6/13/12, 2 pages
P 2010 Form 1040, 1/19/12, 2 pages
Q 2009 Form 1040,[2] pages
District
Footnotes
[1] An additional reason for the first extension was that I was appointed to hear the matter two days before the original decision deadline.
[1] IEP, 1/7/13, 9 pages
[2] Email, 1/17/13, 1 page