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: June 20, 2013

August 12, 2013

August 21, 2013

Actual Record Closed Date: September 5, 2013

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2013

Father of Student Parent Advocate Associated with Parents\\ Educational Advocacy Service — Parents

District and New York City — DOE

Representative — DOE

Assigned to – Attended Committee Meeting of 3-31-11 (by phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2013

Father of Student — Parents

Parent Advocate Associated with Educational Advocacy Service — Parents

Parent Advocate Associated with Educational Advocacy Service (by phone) — Parents

School (by phone) — Parents

School (by phone) — Parents

District and New York City — DOE

Representative — DOE

The Matter of (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Article 89 of the Education Law of the State of New York, on June 20, 2013, August 12, 2013 and August 21, 2013. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter by notification dated December 19, 2012. The Actual Record Close Date was September 5, 2013

The proceeding was first initiated by Parents by the filing on their behalf by Educational Advocacy Services of a Due Process Complaint Notice, dated May 12, 2012, which was assigned Case # by the New York City Department of Education’s Impartial Hearing Office (Exhibit A). However, at some later time, Parents withdrew their Due Process Complaint upon the understanding that their claim had been resolved by the said Department of Education. Thereafter, a Due Process Complaint Notice was filed on their behalf by Educational Advocacy Services, dated December 18, 2012 and received by the New York City Department of Education’s Impartial Hearing Office on that date (Exhibit B), seeking to re-open their previously-filed Complaint on the basis that the Department of Education had failed to finalize a settlement. Thus, while I have been given jurisdiction over the Due Process Complaint dated December 19, 2012 (Exhibit B), the issues that will be resolved in this proceeding are those set forth in Parents’ Due Process Complaint was filed on May 15, 2012.

Parents allege in their Complaint (Exhibit A) that District and its on Education failed to offer Student a free, appropriate public education (FAPE) for the 2011-2012 school year on both procedural and substantive grounds. However, no procedural errors are alleged in Parents’ Complaint and the only substantive grounds alleged are that the Parents are not in agreement with the drafted Annual Goals contained in Student’s Individualized Education Program (I.E.P.)

Parents seek, in this proceeding, an Order requiring the direct payment of tuition to for the costs incurred by their unilateral placement of Student at such facility for the 2011-2012 school year.

At the time of the Committee meeting of March 13, 2012, Student was just shy of old, having been born . According to the testimony of Parent, Student

District’s Committee on Education (C.S.E.) met on March 31, 2011to prepare Student’s Individualized Education Program (.I.E.P.) for the 2011-2012 school year. Present at the meeting were a Education Teacher Assigned to the Committee, who served as both the District Representative and Education Teacher, School testified that the Committee had no reports or other documentary information before it at the meeting, but relied on the information provided to it by the persons from who were participating. It was noted in the I.E.P. that, as Student’s private school had provided the Committee with no current written reports, the Committee had relied on the oral reports obtained during the Committee meeting. Presumably from the input from the participating staff of Student’s then placement, the

As a result of that meeting, an I.E.P. was issued (Exhibit 1). The I.E.P.; classified Student as having a and recommended that Student receive his educational program in a Class in a Community School having a together with the Related Servicers of twice weekly,

Thereafter, Parents were issued a Final Notice of Recommendation, dated July 1 2011, offering Student placement , together with the Related Services recommended by the By correspondence dated August 22, 2011, Parents, through their Advocate, notified District that Parents were enrolling Student at (Exhibit C). Indeed, by that date, Parents had already signed a Tuition Contact with for Student to attend that institution for the 2011-2012 school year (Exhibit E). On May 15, 2012, as previously noted, Parents caused to be filed their Due Process Complaint, in which Parents sought either reimbursement or direct payment to for such unilateral placement.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and (3) equitable considerations support the Parents’ claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a , Appeal No. 01-052). Further, the fact that the facility selected by the Parents to provide education services to the Child had not been approved as a school for children with by the State Education Department of the State of New York is not dispositive of the Parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In both decisions, the Court noted that:

“Parents who unilaterally place a student

in a private educational facility … do so

at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Conners) and even to retrospective tuition payment ( However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the Student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404(1)(c)). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, Parents’ right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404(1)(c))). Should Parents fail to establish the appropriateness of the unilaterallyselected facility, Parents’ request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parent. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement rests upon Parents.

DISCUSSION

It has been often stated by the State Review Officer (see Application of the Blank, Appeal No. 11-105), that 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 Individualized Education Program (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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, that is not exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at 4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, 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 Parent’s 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]; 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]; 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]).

It was further noted by the State Review Officer in the above-cited Decision that an appropriate educational program begins with an IEP that accurately reflects the results of 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 education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a , Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9).17 The student's recommended program must also be provided in the Least Restrictive Environment (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 P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). 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]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (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]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). 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). While such benchmarks, garnered from different sources and different courts dealing with various factual presentments, appear to establish varying standards for the basis of determining whether a particular educational program meets the obligation imposed upon districts to provide a free, appropriate public education, I shall employ, in my review and determination of the issues raised in Parents’ Due Process Complaint, the of whether the program offered to Student by District was reasonably calculated to provide Student with some meaningful educational benefit.

In accord with the above, it is necessary that I first review the appropriateness of the education program offered to Student by District for the 2011-2012 school year. However, in so doing, I am restricted to determining the issues raised by Parents in their Due Process Complaint. As reflected in Commissioner’s Regulations, the party requesting the hearing is not allowed to raise issues other than those filed in their Due Process Complaint Notice (8 NYCRR 200.5)j)(1)(ii)). As previously noted, although Parents’ Complaint alleged procedural violations not otherwise specified, I find that no procedural errors were committed by District in the preparation of Student’s I.E.P. Parents’ Due Process Complaint indirectly challenged the appropriateness of the Annul Goals contained in Student’s I.E.P. The Complaint (Exhibit A) states that “Mrs.[Parent] was not in agreement with the drafted annual goals.” and that “Mrs. [Parent] will state that the annual goals did not reflect the discussions that took place concerning [Student]’s needs.”. However, the fact that Parent did not agree with the drafted goals does not, in and of itself, lessen the appropriateness of such goals. Further, Mrs. [Parent} did not appear at this proceeding and did not testify to the statement contained in Parents’ Due Process Complaint. Further, I find that the Student’s I.E.P. reflects the deficits described by Student’s then-classroom teacher and school Director are accurately reflected in the I.E.P. Witness , who had participated in the Committee meeting of March 13, 2011 and the only participant from who testified in this proceeding offered no testimony regarding the formation of the Annual Goals or any discrepancy between the discussions had at that meeting and the Annual Goals that appear in the I.E.P. In reviewing the I.E.P/ as a whole, I find that it contains appropriate Annual Goals in all of the major areas of Student’s deficits.

Parents also objected to Student’s I.E.P. as the Annual Goals prepared for the use of the behavior management were not specific enough to provide guidance and instruction (Exhibit A). Not only do I find otherwise, but the assigned to Student works under the direct authority and control of the classroom teacher, making it unnecessary for the I.E.P; to contain Annual Goals for the .

Finally, I address Parents’ allegations that challenge the appropriateness of the placement offered to Student at Parents contend that the school offered to Student is too the class was both for Student. However, I take note of the fact that Parents had, weeks before, advised the District that they were enrolling Student at . District had no obligation to maintain a place for Student. Also, having provided Student with the services of a , Indeed, having so notified District of their unilateral placement of Student, Parents lost all standing to challenge the appropriateness of the proffered placement.

It is my finding and determination that District has established that it offered Student a free, appropriate public education for the 2011-2012 school year. Thus District has borne its burden as imposed upon it by law and regulation.

Having so found, it is unnecessary that I review the appropriateness of the unilateral placement made by Parents or to determine where equitable considerations lie.

ORDER’

Based upon the above review, it is HEREBY ORDERED that Parents; Due Process Complaint be, and the same hereby is, DISMISSED. Dated: September 17, 2013

_______________________

JAMES P. WALSH

Impartial Hearing Officer JW: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 RECORD ON JUNE 20, 2013

1. Student’s I.E.P. as Prepared by District’s C.S.E., dated 3-31-11 (18 pages; DOE)

2. Final Notice of Recommendation, dated 7-1-11 (1 page; DOE)

3. Progress Report from The For the 2011-2012 School Year (6 pages; DOE)

4. Notice to Parents of Meeting, dated 2-22-11 (2 pages; DOE)

DOCUMENTATION ENTERED INTO RECORD ON AUGUST 12, 2013

A. Parents’ Due Process Complaint Notice, dated 5-15-12 (4 pages; Parents)

B. Parents’ Due Process Complaint Notice, dated 12-18-12 (1 page; Parents)

C. Letter to Chair from Parents’ Advocate, dated 8-22-12 D Not Offered (2 pages; Parents)

E. Tuition Contract by Parents with Schools, dated 8-16-11 (1 page; Parents)

F. Affidavit sworn to on 6-20-12 (1 page; Parents)

G. Student’s Daily Class Schedule for the 2011-2012 school year at School (1 page; Parents)

H. The Report for Student for the 2011-2012 School Year (12 pages; Parents)

I. Report by, dated January 2012 (2 pages; Parents)

J. Parents by dated June 2012 (1 page; Parents)

K. , dated June Parents 2012, by (1 page; Parents)

L. I.E.P. Developed by The School for Parents Student for the 2011-2012 School Year (10 pages; Parents)

M. of Student by., dated12-13-10 (9); Fax Transmission Verification Report (1) (10 pages; Parents)

N. I.E.P. as Developed by District’s C.S.E. on 3-3-11 (19 pages; Parents)

O. Parents’ 2011 Form 1040 Federal Income Tax Return (2 pages; Parents)

P. Copies of Parents’ Bank Statements for Period October 2011 through June 2012 – Reflecting Payments to Schools (7 pages; Parents)

Q. Copy of Internet Page of Schools Informational Page re: (3 pages; Parents)