New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 21, 2012

April 26, 2013

May 13, 2013

May 16, 2013

Actual Record Closed Date: June 16, 2013

Hearing Officer: Edgar De Leon, Esq. Case No. 141698

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 12/21/12 (T)

CSE Chairperson’s DOE 04/26/13 05/13/13 05/16/13 Special Education Teacher DOE 05/13/13 Assigned 05/16/13 Attorney PARENT 12/21/12 (T) Attorney PARENT 04/26/13 05/13/13 05/16/13 Parent PARENT 05/16/13

PARENT 05/16/13 (T)

PARENT 05/16/13 (T)

On October 19, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of an attending a private school and the New York City Department of Education (“DOE”) - Home District: , Service District: 88, concerning the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on December 21, 2012, April 26, 2013, May 13, 2013 and May 16, 2013. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated June 11, 2012 was not received. (See Parent’s Due Process Complaint - “DPC”) The Parent also alleges that the “Final Notice of Recommendation” (“FNR”) was not properly completed. (Id.) What’s more, the student needs a small class. (Id.) Accordingly, the Parent asserts that the student was denied a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year. (Id.) As such, the Parent unilaterally placed the student in a private school. (Id.) The Parent seeks an order requiring the DOE to pay “prospective funding ‘to pay the tuition directly’” for the student’s tuition and transportation and related services at the private school for the 20122013 school year.

THE DOE’S CASE

The DOE argues that the student’s meeting held in preparation for the 2012-2013 school year was in fact a “Individualized Education Services Program” (“IESP”) and not an “Individualized Education Program” (“IEP”). (T-18-9) The IESP is not a recommendation for a “free and appropriate public education” (“FAPE”). (T-19) The IESP services and goals were crafted to support the student in his parentally selected placement. (Id.). The IESP was indeed sent late to the Parent but that does not constitute a depravation of FAPE. (Id.) The Parent is an employee of the DOE who entered into a Case No. 141698 contract with the private school in October, a month after the 2012-2013 school year began. (T-20) The Parent did not give the DOE appropriate “10-day notice” by telling the DOE of the student's unilateral placement at the private school in a letter dated September 4, 2012. (Id.)

The DOE called (1) witnesses to testify on its behalf and submitted (5) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s only witness is a certified and licensed special education teacher. (T-

37) She has worked for the DOE for (30) years. (T-38) She conducted the student’s annual review meeting in June of 2012. (T-40) It was an IESP review. (Id.) An IEP is for a student within a public school, an IESP is for a student who's been parentally placed in a private school setting, where the Parent has chosen to place the student in the private school at their expense. (Id.)

At the meeting they considered the student’s previous IEP as well as interviews with the teacher. (T-42) The IESP was actually created at the meeting. (Id.) The student’s mother and teacher were on the telephone. (T-43) “Special Education Teacher Support Services” (“SETSS”) were approved at the meeting and no one voiced a concern. (T-43-4) The student’s SETSS provider did not participate in the meeting. (T-50) She took “minutes” at the meeting. (T-51 & D-4) She directly asked the Parent if the student would be returning to his previous school and the Parent stated yes. (T-51) From her previous dealings with the student's previous school, she knows that it has a 10-month school year. (T-54) She faxed the FNR to the Parent, after the meeting on June 20, 2012. (T-57-8) There was no discussion at the meeting about the difference between an IESP and an IEP. (T-60) The IESP was not sent to the Parent prior to the start of the 2012-2013 school year because she did not get to them in a timely manner. (T-61) She found out that the student was no longer attending his previous school from a colleague. (T-63)

On cross examination, the witness testified that she does not teach in a public school setting. (T-71) She does observations, but did not do one of the student. (T-71-2) Case No. 141698

She developed the student’s goal with his SETSS provider but did not explain the goals to the Parent. (T-72) No input was received regarding goals from the student’s teacher, but she did receive information from her as to how the student was doing in her class. (T73-4)

On re-direct examination, the witness testified that she gave the student the “Lab Test” when he was initially referred to the CSE. (T-76) The student was tested in English and passed the test. (T-77) The test was conducted in English. (Id.) She was advised by the Parent that the SETSS provider was not available for the IESP meeting. (T-78) She mailed a copy of the student’s IEP to the Parent who did not indicate that her address had changed. (T-79-80) She did not hear from the Parent after sending her the “IEP.” (T-80) On re-cross examination, the witness testified that she sent an FNR to the Parent. (T-81)

THE PARENT’S CASE

The Parent argues that an IEP or an IESP was never provided to her. (T-21) The student’s previous school advised the Parent that the student could not return to that school for the 2012-2013 school year. (T-21-2) A general education public school was not an option for the student. (T-22) Accordingly, the Parent wrote a letter to the “Committee on Special Education” (“CSE”) dated September 4, 2012, wherein she stated that she had not received an IEP but had received the parentally placed “Final Notice of Recommendation” (“FNR”) dated June 20th. (Id.) At this hearing, the Parent is seeking “prospective placement” for the student's attendance at his current private school for the 2012-2013 school year. (T-23)

The Parent called (3) witnesses to testify on her behalf and submitted (9) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the principal at the student's private school. (T-92) She testified that the private school is a small school whose mission is to work with students who have and uses instruction. (T-85) The student is in classroom and started in September. (T-85-6) Their students work with a one on one reading specialist. Case No. 141698

(T-86) The student's production positively differs greatly when he works one on one. (Id.) The student was observed at the private school this year by the DOE. (T-87)

The Parent told her that an IEP meeting had been conducted in June, but that she never received the IEP. (Id.) The student is making gains at the private school in both word recognition and decoding skills. (T-89) He needs more work on organization and writing skills. (T-90) The student has gone . (Id.) SETSS is not appropriate for the student because he needs more support. (T-91) The student and receives reading on a one on one basis everyday at the private school. (T-92)

On cross examination, the witness testified that the she teaches in every classroom at least once a week. (T-92) They only have (24) students and (10) staff members. (T-

94) The Parent has been paying the school $500.00 per month. (T-96) The student does not have any opportunities to interact with students that do not have IEPs at the private school. (T-97) There was no re-direct examination of the witness. (T-97-8)

The Parent’s second witness is a licensed special education teacher. (T-101) She testified that the student has a lot of processing issues and needs a lot of other explanations and multi-sensory examples. (T-103-4) She teaches the student with “Inspiration” software which allows him to put together a web graphic organizer that helps him organize his thoughts. (T-105) The student cannot work in a large school environment or in general education with a pull out one time a day because he needs a lot of one on one attention. (T-106)

The witness stated that the student is making progress at the private school. (T-

107) His writing has become more complex, he has roughly (150) new spelling words and his reading skills have also moved ahead slowly. (Id.) The student will move forward next year to the next level. (T-108)

On cross examination, the witness testified that the student did not start the private school on the first day of school. (T-109) The student started the private school on September 19th. (T-111) There was no re-direct examination of the witness. (Id.)

The Parent’s third and final witness is the student’s mother. (T-112) She testified that the student’s previous school had only “ student-to-teacher ratio. (T-115) The Case No. 141698 student was receiving SETSS services. (Id.) However, the student needs a multi-sensory approach and he was not receiving enough of it. (T-116) At the IEP meeting, they had the student’s report card, his progress reports and the student’s teacher on the telephone. (Id.) In July she came to the “record room” to get the student’s June IEP. (T-117) The IEP was still not available. (T-118) She called the record room twice in September and they told her that the IEP was not completed in “SESIS” yet. (T-118) On September 4th she wrote a letter to the DOE advising that the student was going to attend the private school. (T-120) She has never seen the progress that she has seen in the student in the last few months. (T-121) She could not believe that the student was verbalizing his words. (Id.)

On cross examination, the witness testified that she received a copy of the “IEP” in March. (T-122) She agreed that the student’s SETSS provider would provide his goals. (T-122-3) She did not actually ask for a non-public school placement at the meeting because that option was never explained to her and she did not know her options in terms of placement. (T-124) She expressed her concerns at the meeting that the student had been assessed. (T-126) She did not state that the student would not be returning to his previous school at the meeting because she had not made the decision yet. (T-127-8) The FNR was mailed to her that same afternoon. (T-128)

The witness stated that she is a DOE school psychologist. (T-128-9) When questioned as to why she stated that she was not familiar with her options at the meeting, the witness replied that she thinks she has the right to be treated as a parent. (T-129) She received a “P-4” for the make-up sessions that the student missed. (T-131) She signed the FNR because at the time she agreed with the recommendations that the DOE offered her. (T-131-2 & P-C) She signed the contract with the private school on October 9th and started to make payments in September. (T-133-4 & P-D) She does not remember if she wrote her September 4th letter after school started, but she “thinks’ that it was during the first week of school. (T-136-7 & P-I) She did not tell the DOE representative that she was looking for a private school. (T-139) She made her decision to place the student at Case No. 141698 the private school in August, but did not contact the DOE because they told her no one was there for the summer. (T-140)

On re-direct examination, the witness testified that in June the student’s previous school gave her an indication that they did not want the student back. (T-141) She also looked at public schools also. (T-142) On re-cross examination, the witness testified that she called a few public schools after the IEP meeting. (T-145) She was inquiring about a program, but she does not think they had one for the student. (T-146)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

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. (See 20 U.S.C. § Case No. 141698

1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

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. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at Case No. 141698

132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

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]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took Case No. 141698 effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89) Case No. 141698

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. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, 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, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07Case No. 141698

120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

I first note that the CSE must review the request for services and develop an “Individualized Education Service Program” (“IESP”) based upon the student's individual Case No. 141698 needs and “in the same manner and with the same contents” as an “Individualized Education Program” (“IEP”). (See Educ. Law § 3602-c[2][b][1] - emphasis added)

What’s more, “If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private .. . school located in another LEA, the LEA where the child resides need not make FAPE available to the child.” (See Office of Special Education guidance memorandum dated September 2007 titled “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State Education Law Section 3602-c”) “Therefore, if the parents make clear their intention to keep their child enrolled in the non-public . . . school, the district of residence need not develop or annually review an IEP for the student.” (Id.)

Pursuant to Education Law § 3602-c, school districts of the State shall furnish services to students who are residents of this State and who attend non-public schools located in such school districts upon the timely written request of the parent or person in parental relation of any such student. (emphasis added)

The Parent in this case asserts that the student’s CSE meeting was held on June 11, 2012, but his “IEP” was not received until March of the following year. (T-122 &

DPC) The Special Education Teacher, testifying for the DOE, conceded that the “IESP” was not sent to the Parent prior to the start of the 2012-2013 school year because she did not get to them in a timely manner. (T-61) (I note that throughout the hearing the parties used the terms “IEP” and “IESP” interchangeably when actually discussing the same document.) The student started the semester at the private school on September 19,

2012. (T-111)

The DOE’s “IEP Conference Summary” notes dated June 12, 2012 state that the student’s Program Recommendation is “Parentally Placed/SETSS.” (D-4) Thus it is apparent that the DOE was aware of the student’s private school placement at the time of the CSE meeting. The Parent testified that she went to the “record room” in July and Case No. 141698 called the same in September to get a copy of the student’s IEP. (T-118) Finally, the Parent wrote a letter to the CSE dated September 4, 2012, wherein she advises the agency of the student’s private school placement and that she has received an FNR but has yet to receive the student’s “IEP” for the current school year. (P-I)

It is settled that at the beginning of each school year, a school district is required to have an IEP in effect “for each child with a disability in [its] jurisdiction.” (See 20 U.S.C. § 1414[d][2][A], 34 C.F.R. § 300.323[a] and Cerra, 427 F.3d at 194 (“. . . the District fulfilled its legal obligations by providing the IEP before the first day of school.”). Federal regulations specifically direct that a school district must have an IEP in place at the beginning of the school year. (See 34 C.F.R. § 300.323[a]) Here, there is no evidence in the record establishing that was the case. To the contrary, the record evidences that the Parent did not have the “IEP” or that the private school received the IEP prior to the start of the school year. (T-87)

A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being educated under the plan, or would be, but for the delay in implementation. (See E.H., 2008 WL 3930028, at *11 [N.D.N.Y. Aug. 21, 2008] aff'd 2009 WL 3326627 [2d Cir. Oct.16, 2009]) Such is the case here.

Once a Parent consents to a district’s provision of special education services, such services must be provided by the district in conformity with the student's IEP. (See 20 U.S.C.§ 1401[9][D], 34 CFR 300.17[d], 20 U.S.C. § 1414[d] and 34 CFR 300.320) With regard to the implementation of a student’s IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student’s IEP in a material way. (See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010], Van Duyn v. Baker Sch. Dist. 5J,502 F.3d 811 [9th Cir. 2007] and Houston Independent School District v. Bobby R., 200 F.3d 341 at349 [5th Cir. 2000]) Here, the private school (and the school district) could not possibly conform its services to the IEP to any degree, because it was never received until March, significantly into the 2012-2013 school year. Case No. 141698

The student’s “IESP” notes that his reading comprehension skills continue to be in need of remediation. (P-I) His “management needs” are stated as modeling, scaffolding, graphic organizers, redirection/refocusing as needed and rephrasing when needed. (Id.) The IESP contains numerous post-secondary goals (approximately 14), which would be impossible to follow without the benefit of having the document as a reference. (Id.) The IESP also calls for the student to receive SETSS services (5 times per week), speechlanguage services (2 x 30) per week and testing accommodations. (Id.) The record is devoid of evidence that these services are being provided to the student at the private school and/or that they are being provided to the degree specified in the IESP. While there is evidence that the student’s SETSS provider provided the student’s goals (T-72) there was no input received from the student’s private school teacher regarding goals and nothing in the record indicates that they are being followed in a substantial and significant manner. (T-73-4) It would be improper to impute knowledge of the IESP’s contents to the private school. Thus, it stands to reason that there is a “material” deviation from the student’s IESP resulting in a denial of FAPE. (See A.P., 2010 WL 1049297 [2d Cir. March 23, 2010], Van Duyn, 502 F.3d at 822, T.L. v. Dep't of Educ. of City of New York, 2012 WL 1107652, at * 14 [E.D.N.Y. Mar.30, 2012], D.D.-S. v. Southold U.F.S.D., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011] and A.L. v. Dep't of Educ., 2011 WL 4001074, at *9 [S.D.N.Y. Aug. 19, 2011])

I also note for the record that the IESP indicates that the CSE meeting was only attended by the Parent and the student’s General Education Teacher (via telephone) and the District Representative. (T-43 & D-1) Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of Case No. 141698

the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the record is clear that the student CSE team on June 12, 2012 was not duly constituted under law. The law is well settled that an invalidly constituted CSE results in an invalid IEP. (See SRO Nos. 93-17, 94-11, 96-87, 91-23, 93-11, 96-57, 96-28, 96-30, 00-031, 00-044, 99-8, 91-21, 91-23, 91-37, 91-10, 91-20, 93-32, 96-57, 93-42, 93-15, 9622, 96-23, 91-33, 92-17, 93-7, 92-3, 92-33, 93-29, 94-4, 96-55, 96-66, 91-33, 97-21, 9749, 00-043, 00-069) For all of the reasons stated above, I find that the DOE denied that student a FAPE for the 2012-2013 school year.

I next turn to the question of whether the student’s private school placement is appropriate. Here, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the student’s unique needs, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo and Frank G., supra)

The student in this case is said to have a lot of processing issues and need a lot of explanations and multi-sensory examples. (T-103-4) It is said that the student cannot work in a large school environment or in general education, because he needs a lot of one on one Case No. 141698 attention. (T-106) At the private school, the student works . (T-86 & 92) The student’s when he’s working . (T-86) The private school is a small school whose mission is to work with students who have language-based and uses Orton-Gillingham multi-sensory direct instruction. (T-85) Thereat, the student “Inspiration” software which allows him to put together a web graphic organizer . (T-105) The student is both word recognition and decoding skills, and has gone level if not more in math. (T-89-90) The student is verbalizing more at the private school and now has roughly (150) new spelling words. (T-107 & 121) The student is expected to move forward at the private school to the next level. (T-108) Based on the record before me, I find that the student is appropriately placed.

I do not find the record that shows that the Parent has not cooperated with the CSE. As stated above, in the absence of evidence demonstrating that the Parent failed to cooperate in the development of the IEP (here IESP) or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049) The Parent in this case attended the CSE meeting which the DOE has defended as appropriate. (D-1) Thus it cannot be said that the agency was precluded from developing an appropriate IESP for the student. The Parent served “notice” of the student’s unilateral placement at the on September 4, 2012 (after the beginning of the school year, but the student did not start at until September 19, 2012. (T-111) It is unfair for the DOE to argue that the student gave “late notice” of the student’s placement at the private school, when the agency itself was severely late in providing the Parent with the IESP. (T-122) Therefore, I find that equitable considerations do not bar an award on behalf of the Parent in this case. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request.

NOW therefore, it is hereby Case No. 141698

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall pay the costs of the student’s tuition, transportation and related services for his attendance at the private school for the 2012-2013 school year. Dated: June 28, 2011

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:gc

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. Case No. 141698

DOCUMENTATION ENTERED INTO RECORD

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Individualized Education Services 06/12/12 DOE 11

02 E-Mail Correspondence 06/18/12 DOE 01

03 E-Mail Correspondences VARIOUS DOE 02

04 IEP Conference Summary 06/12/12 DOE 02

05 Proof of Disclosure Service 05/06/13 DOE 01

A Parent’s Impartial Hearing 10/18/12 PARENT 02

B Due Process Complaint Receipt 10/19/12 PARENT 02

C Final Notice of Recommendation 06/20/12 PARENT 01

D Contract 10/09/12 PARENT 02

E School Program Description Undated PARENT 01

F Student Class Schedule 2012-2013 PARENT 01

G Student Attendance Record 2012-2013 PARENT 01

H Parent’s Income Tax Return 08/28/12 PARENT 02

I Parent’s Notice Letter to CSE 09/04/12 PARENT 01