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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Date of Hearing: February 11, 2013
Actual Record Closed Date: October 18, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2013
Esq. Attorney — Parents
Father — Parents
Teacher, School — Parents
(via telephone)
Teacher, School — Parents
(via telephone)
- Teacher, School — Parents
(via telephone)
Teacher, School — Parents
(via telephone
District Representative — DOE
On February 11, 2013, an Impartial Hearing was conducted 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 28, 2012. (Ex. A) I was appointed Impartial Hearing Officer on September 9, 2012, after the recusal of the hearing officer who conducted the hearing and who admitted the party documents in the record into evidence. By the date of my appointment, the evidentiary phase of the hearing had been completed. On September 13, 2013, I was informed, via Notice of Withdrawal (“Notice”) from the Impartial Hearing Office, that the request in this matter had been withdrawn. It was later determined that the Notice was the result of a clerical error by the Impartial Hearing Office and the case was in fact active and I was so notified. The record was thereafter provided, reviewed by me and determined to be complete on October 18, 2013.
The compliance date in this matter had been extended by the previous impartial hearing officer on various occasions. At the time of my appointment, the compliance date was August 30, 2013. The compliance date was thereafter extended by me, at the request of the parties, to enable me to obtain and consider the record and to issue a decision. (Ex. I)
The current compliance date is November 9, 2013. The record closed on October 18, 2013 when I determined that the record transmitted to me was complete. 1
Positions of the Parties
In their hearing request the parents asserted that the DOE had failed to provide a free appropriate public education (“FAPE”) for the 2012-2013 school year. The parents claimed that the May 11, 2012 IEP was procedurally and substantively defective and that the recommended placement was inappropriate. They unilaterally placed the student at the School (“ ”) which they claim was appropriate and seek DOE funding, by full reimbursement, for that placement. The parents assert that there is no equitable basis for the denial or limitation of reimbursement. (Ex. A)
The record demonstrates that DOE did not contest the parents’ claim that a FAPE was not provided for the 2012-2013 school year. (T. 4) Further, it stated no objection or disagreement with the claim that the program provided was appropriate. Its sole claim in this matter was that the reimbursement should not be provided for what it described as the general education part of the program at but should be limited to that portion of the program focused on . (T. 79) As discussed further herein, the Jump Start element of the program is a separately identified portion of the total cost of the program and provides additional services for students with . The DOE had no “equities” issues to be addressed. (T. 78-79)
Cases Presented
The parents submitted various documents which were admitted into evidence. The DOE submitted no documents. (T. 4) A list of documents in evidence is appended.
The DOE presented no witnesses. The parent presented the following testimony:
(“ ”)
is a history teacher for , and grade, was previously chairman of the department, was a teacher in the program, and is a certified who also has a Master’s degree in . (T. 6-8, 13) is an “ ” school with 40-60 % of students with and the remainder not. (T. 9) It is a school with 100% of its graduates going to .
(T. 19) teachers are certified in and/or experts and other teachers may be. (T. 9, 13) All classes are “ ” with students are placed with learners with similar ability ranges, skill levels and learning profiles. (T. 9) classes enable instruction and “tracking” enables the movement of students to ensure an appropriate fit. (T. 15-16) The (“ ”) during the 2012-2013 school year included some 1/3 of the student population of
358. (T. 11) Each teacher works with - students and that includes scheduled instruction with student, minute meetings with the class and minute study
The parties had agreed that no closing briefs were to be submitted. (T. 6) hall after school. (T. 12) All classroom teachers are also required to be available during that period and teachers work closely with classroom teachers with regard to coordinating instruction to meet individual student needs including by both modifying instruction if appropriate and teachers sometimes push-in to regular classes to facilitate that and they also provide formal training session for classroom teachers on techniques and strategies. (T. 12-15) Professional development is also provided to all teachers by outside experts. (T. 15) Parents are involved through e-mails and conferences and also by the program which is a computer program that always parents and all staff to keep constant track of the student’s assignments and progress and provide appropriate support. (T. 17-18) The inclusion environment provides students with with appropriate typically developing models and enables them to participate academically and socially in a mainstream environment. (T. 18-19)
Father (“the parent”)
The parent testified that the student demonstrated and in grade and in school as well as tutoring outside of school. (T. 22) She kept up for awhile, although , but by the grade withdrew, using her diagnosis of and did not participate in class and had a . (T. 23) An assessment described increased processing issues but of and recommended a school. (T. 24) The student, however, remained at the mainstream School through the grade. (T. 24) She was enrolled in the School “ ”), a school for the nest 3 years. (T. 24) However, upon entry had placed the student in grade upon entry so she completed , and grade there. (T. 24-25) The student extremely well, getting As, with attentive teaching. (T. 25) did not provide a program after the grade and the parents selected because it had a including those without to enable her to have more challenge with support as well as a broader range of activities. (T. 25-26, 30-31) The student was reevaluated by the parents at that time and that assessment as well as all requested documentation was submitted to the CSE. (T. 26, Ex. C) Although the parents were concerned about the appropriateness of the recommendation (collaborative team teaching), they were wanted to look at the placement proposed and wrote the CSE in June 2012 asking for identification of the placement. (T. 27-28, Ex. I) No placement offer was received until mid-August 2012.
(T. 27-28) The parents received no response to their efforts to visit at that time and so informed the CSE by letter dated August 21, 2012. (T. 28, Ex. J) They visited the placement in September as part of a tour with other parents. Concluded that the school was not appropriate and informed the CSE of their concerns by letter dated September 18,
2002. (T. 29, Ex. K) The parents had signed a contract with , which required payment of a deposit, in February 2012 about which they had timely informed the CSE by letter dated February 23, 2012. (T. 31-32, Exs. D, E, G) On May 3, 2012, the parents obtained insurance for tuition payment. (T. 32, Ex. F) The parent stated that the student has done well at academically and socially. (T. 33-34)
- (“ ”)
is the Chair of ’s History Department and is a History teacher with 9 years of experience at . (T. 36-37) The student was in her grade world history class during the 2012-2013 school year. (T. 37) That class had students with at least 50% in .
(T. 37) The student has some , and some and and other students have very similar challenges. (T. 37-38) Because of, among other things, her , the student requires , a lot and and , the use of , the provision of intermittent “ and ” questions in reading assignments, the “ ” of various assignments, - plans and techniques and to ensure comprehension and all that is provided. (T. 38-39, 41-43) Similar techniques, along with are used when appropriate in writing. (T. 43-45) Specifically developed vocabulary lists and other techniques and emphases are utilized to address the student’s . (T. 46-48) is also available even after the school mandated time if the student wishes to consult her. (T. 48) The teacher also communicates frequently with this student’s teacher with regard to the student. (T. 48) The student progressed academically with “very good” grades and is responding very well the techniques, as demonstrated by, among other things, increased voluntary participation in class and improvement in vocabulary and writing. (T. 49-50) opined that was appropriate for this student. (T. 50)
(“ ”)
is a teacher of English with 6 years experience there and is a New York State certified teacher. (T. 52) The student is in her English class and she described the student has having , and with other students in the class having the same issues
(T. 53-54) addresses this with techniques and strategies to enable the student to know exactly what is expected each day, and , material and , , an overhead projector to provide and other techniques, techniques and conferences at least once a week. (T. 55-60, 63) The student has progressed academically with regard to writing and comprehension and also excels at being her own self-advocate. (T. 60-62) opined that is an appropriate placement. (T. 62)
(“ ”)
was the student’s teacher at , has taught at and is a New York State certified and holds a certification for literacy. (T. 64-65) She described as a school for children with - . (T. 64) In addition to daily class sessions to deal with executive functioning as well as self-advocacy issues and in which opportunities to consult her subject teachers were provided, the student received one to instruction a week which focuses on skills-based instruction. (T. 66-68) teachers responsibilities include review and assistant with prioritization of entries, which can be viewed by parents, and interaction with the student concerning completion of assignments and the student is able to set up additional appointments based upon need. (T. 67, 68-69) Classroom - by the teacher are made and she - to the student’s English class a week. (T. 68) addresses the student’s comprehension, / and with techniques learned as a and based upon experience gained at and . (T. 70) She reinforces annotation skills, assists with highlighting, discusses student , utilizes graphic organizers, works on inferencing skills, development of , assistance with breaking words down to roots, identifying context clues and prompting the expansion of writing through writing systems helping with organization and expansion. (T. 69-75) has provided information to teachers with suggestions as to how to address the student’s deficits and modify instruction through e-mails and meetings. (T. 75-76) The student has made demonstrated progress academically, is and is a good self-advocate. (T. 76-77) She described the student as very bright but needing challenges and opined that the inclusion program provided that appropriately and that a self-contained program would not be appropriate. (T. 77-78)
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 Prong 3 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)
Prong 1
In the instant matter, the DOE has not provided any evidence or made any assertion with regard to the parents’ claim that it failed to provide a FAPE. Accordingly, the DOE has failed to meet its burden.
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 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).
I find the testimony of the witnesses credible and, further, note that it has not been disputed by the DOE.
The student is within the average range of and a . She worked at the mid grade and at the grade instructional levels for reading and math respectively at the time of the CSE review and the CSE concluded that she would benefit from a program which included general education students. (Exs. B, C) Based upon the evidence presented, I find that the program addressed the student’s and and provided the management needs and supports/modifications noted by the CSE and in the . (Exs. B, C) Further, the evidence shows that the instructional staff was appropriately qualified. I note that it is not required that each provider by special education certified. Carter. Further, I am persuaded by the evidence presented that the student made progress.
I note that the CSE recommended a weekly minute - (“ ”) session in a group of three and that there is nothing in the evidence suggesting that any was provided. However, the IEP mandate is at a minimal level and, further, it is well established that parents need not provide each element of the CSE’s program.
I find that the parents have met their burden to establish that the program provided was reasonably calculated to enable the student to make meaningful educational gains.
Indeed, I note that the DOE has not disputed the claim that the program provided was appropriate. The sole claim made by the DOE is that reimbursement should be limited to the program claiming that that is the portion of the program for learning disabilities. (T. 79) With regard to tuition costs, basic tuition for for the 2012-2013 school year was $38,350 with an additional $18,000 for the Program. (Exs. D. E) However, with regard to the DOE’s claim, I note that the evidence, set forth above, shows that the Program is fully integrated into the student’s inclusion program both in services provided to the student and teacher interaction. See e.g. Appeal No. 10-
101) Further, I note that the CSE acknowledged that this student would benefit from participation in a general education program and itself recommended an integrated coteaching program which involves provision of the student’s program with non-disabled peers (Ex. B)
With regard to other claims for relief specified in the parents’ hearing request or suggested in this proceeding, I find as follows:
The parent’s request specifies entitlement to transportation as mandated by the both New York State and federal law. I note that there has been no evidence submitted with regard to transportation provided nor has there been a claim for reimbursement of any specific amount. Accordingly, reimbursement for transportation during the 20122013 school year will not be ordered.
I also note additional charges “if applicable” were specified on the enrollment contract. (Ex. D) There has been no testimony or evidence as to their applicability in this matter and I find that the parents are not entitled to any reimbursement based upon payment of those fees.
With regard to a claim for reimbursement for evaluation costs, I note that no evidence indicating entitlement to DOE funding for any evaluation and/or the amount claimed has been submitted. Accordingly, a basis for reimbursement has not been established and the claim for reimbursement for evaluations, if not withdrawn, is denied.
Finally, the parents testified that they obtained tuition insurance. There was no testimony that it was required for enrollment but rather the evidence shows that it was a voluntary election determined by them to be desirable in their financial circumstances. (T. 32, Ex. D) Indeed, I note that when they entered into the enrollment contract they indicated that insurance was not wanted and only later determined otherwise. (Ex. D) Although the prior hearing officer indicated that he believed that reimbursement for tuition insurance was appropriate, I conclude otherwise. (T. 54) Further, I conclude that I am not bound by the personal view that he expressed in this matter. If reimbursement has in fact been requested in this matter, it is denied. (Ex. A)
Prong 3
I conclude that the DOE has conceded that equitable considerations do not bar or limit reimbursement in this matter. However, in the event that that is disputed I find as follows:
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14.
In the instant matter, the DOE made no claim that reimbursement should be barred or limited. Thus the DOE does not assert that the parent failed to cooperate with the CSE in the development of the IEP and, further, I find that there is no evidence to support such a claim. Rather, the evidence, set forth above, shows that they participated, sought a prompt placement and communicated their objections. Moreover, a parent’s preference for a private school, should that be established, and even the signing of a contract prior to an IEP review, as occurred here, is not dispositive of a claim for DOE payment. Appeal No. 05-087. In this matter, I also note, the CSE was kept fully informed of the parents’ consideration of .
I find no basis for the denial or limitation of DOE payment.
ORDER
The student was entitled to attend School and participate in its Program for the 2012-2013 school year. The DOE shall immediately reimburse the parents in the amount of $38,350 for tuition and an additional $18,000 for the Program upon submission by the parents of evidence demonstrating that those fees were usual and customary, that payments by them were made and that the student attended as required. Dated: October 29, 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 Impartial Hearing Request, 9/28/12, 7 pgs. Parents
B IEP, 5/11/12, 13 pgs. Parents
C ., 7/2011, 12 pgs. Parents
D Contract, 2/10/2012, 3 pgs. Parents
E Contract, 2/8/12, 1 pg. Parents
F , 5/3/12, 1 pg. Parents
G , 2/23/12, 2 pgs. Parents
H , 3/27/12,1 pg. Parents
I , 6/11/12, 1 pg. Parents
J , 8/21/12, 2 pgs. Parents
K , 9/18/12, 1 pg. Parents
L , 2/10/12, 1 pg. Parents
M , 11/6/12,1 pg. Parents
N , 1/9/13, 1 pg. Parents
I Impartial Hearing Officer