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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: November 2, 2011
March 22, 2012
June 21, 2012
July 23, 2012
September 27, 2012
November 14, 2012
December 4, 2012
Record Close Date: January 16, 2013
Hearing Officer: Timothy M. Mahoney, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2011
ESQ., Of Counsel to — Student
Parents
Aunt — Student
Translator — Student
Chairperson Designee, CSE — DOE
School Psychologist (via telephone) — DOE
Observer — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2012
Advocate — Parents
Parents
Aunt — Parents
Translator — Parents
CSE District Representative — DOE
Assistant Principal (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2012
Advocate — Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2012
Advocate — Parents
Parents
Aunt — Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2012
Advocate — Parents
Parents
Aunt — Parents
Translator — Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2012
Advocate — Parents
Parents
Aunt — Parents
Translator — Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2012
Advocate — Parents
Principal/Teacher (via telephone) — Parents
CSE District Representative — DOE
On June 21, 2011, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student . (“student” or “ ”) seeking an appropriate educational placement from the New York City Department of Education (“DOE”) for the 2010-2011 school year.
I. BACKGROUND
This case was initiated as a result of a demand for due process (“Demand,” see IHO-I) filed by Educational Advocacy Services (“EASE”) on behalf of the student’s Parent (herein “ or “parent”), appearing, and received by the Department of Education’s Impartial Hearing Office (DOE-IHO) on or about June 21, 2011, and identified as NYC Case No.
Throughout the hearing, the student’s mother was accompanied by .’s aunt (referred to herein as “ or “aunt”).
In her demand for due process, .’s mother alleged that a) the CSE’s 2010-2011 IEP failed to offer the student a free appropriate public education (“FAPE”) in that the class ratio was too high, or not restrictive enough, to meet need for “individualized instruction in a timely fashion to assist her in the classroom,” and that the goals included in the IEP were “superficial and do not meet [ .’s] needs;” and b) seeking the equitable remedy of direct tuition payment to the student’s unilateral placement, i.e. at See P-1.
The DOE argued that FAPE was offered to the student, and that, even were I to find that the DOE failed to meet its burden on the appropriateness of the proposed program, the parent’s request for tuition reimbursement should be denied in that the unilateral placement failed to offer the student an appropriate educational setting. See 11/2/11 Tr. Pg. 8-10.
II. STANDARD
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., No. 08 Civ. 8051 (TPG), 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
III ENTITLEMENT TO IDEIA PROTECTIONS
At the outset, a school district must obtain parental consent prior to the initiation of special education services to a child who has not previously been identified as a child with a disability. 20 U.S.C. § 1414(a)(1)(D)(i)(II); 8 NYCRR § 200.5(b)(1)(iii). Without consent, a child identified through the Child Find process would not be entitled to services. If the parents did not consent to services, I would expect to explore the details of the CSE’s efforts to gain consent, in light of the fact that the parties seemed to have behaved over a number of years as if T.H. has been entitled to special education services.
The DOE waived any defense it might have in this hearing to claim that parents never initially consented to services. Therefore, I will not consider whether such consent existed, and whether lack of consent effectively dismisses the parents’ claims. For the purpose of this hearing, is entitled to the rights and protections afforded to students classified with a disability under the IDEIA, Part 89 of N.Y. Education Law, and their respective implementing regulations.
This inexorably leads to the key question of this case: what does the statute require by way of parental participation? Throughout this hearing there has been no mention of the student’s father – only her mother and her aunt.
The student’s parent is a mandated member of the CSE. Moreover the CSE has a duty to ensure the parent understands the proceedings at the meeting, including arranging for an interpreter for those parents whose native language is other than English. See 34 CFR § 300.322(e); 8 NYCRR § 200.5(d)(5). There are procedures in the statute that permit a CSE to proceed without parental participation. See e.g., 34 CFR § 300.322(d); 8 NYCRR § 200.5(d)(3) and (4).
The crux of the Commissioner’s Regulations on this point is a direction to the committee to document its efforts to secure parental attendance. Documentation consists of “…a record of [the CSE’s] attempt to ensure their involvement.” 8 NYCRR § 200.5(d) (4). The U.S. Department of Education has interpreted these regulations to mean that "[t]he parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents…provide critical information regarding the strengths of their child and express their concerns for enhancing the education of their child…[and] join with the other participants in deciding...what services the agency will provide to the child and in what setting." 34 C.F.R. Part 300, Notice of Interpretation, Appendix A, Question 5.
Typically, the absence of the parent from the creation of the student’s IEP is a fatal flaw to the child’s education plan. The State Review Officer has routinely held that “procedural violations that interfere with parental participation in the IEP formulation process have been found to ‘undermine the very essence of the IDEA’.” Application of a Child with a Disability, Appeal No. 04-046, quoting Amanda J. v. Clark Co. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001); see also Application of a Child with a Disability, Appeal No. 02-015.
There is no record here of the CSE’s attempts to secure T.H.’s involvement. I find that the CSE made no effort to ensure the parent’s participation. Ms. Rodriguez-Gilles testified that she had no knowledge as to whether the parent consented to that substitution of T.H.’s aunt for the student’s parent. 11/2/11 Tr. Pg. 38.
I accept the witness’s testimony on this issue. In listening to the parent’s later testimony, I found that she presented as very limited in her ability to articulate her desires for her daughter and her understanding of the special education process. Admittedly, a portion of this limitation must be attributed to the difficulties in speaking through a translator. I need to stress that this finding does not equal a holding that the parent meets the legal definition of incapacity – that was not an issue for this hearing. Nor do I have the authority or power to make such a determination.
Turning directly to her testimony, ’s mother stated she had no memory of receiving a placement for her daughter for the year in question (3/22/12 Tr. Pg.39); that nobody helps her with her daughter’s placement (3/22/12 Tr. Pg.39); and that she never attended a meeting concerning .’s placement (3/22/12 Tr. Pg.39-40). In reviewing her later cross-examination testimony, I seriously question whether she had any real understanding of the hearing proceedings. See e.g., 11/14/12 Tr. Pgs. 76-77, 79 (on whether . would ever be allowed to attend a private school), 80-81, 82, 83 (on whether . was ever granted legal guardianship of . through a court of law), and 84 (whether the parent was ‘happy’ with .’s placement for the 2010-2011 school year). Reviewing her testimony as a whole, I do not find her testimony to be reliable and do not rely upon it in any way in formulating this decision.
After reviewing .’s testimony, and after hearing the parties’ representatives’ various arguments concerning her non-involvement with the CSE process, I considered the appointment of a guardian ad litem for the student for the purpose of this hearing. See 8 NYCRR § 200.5(j)(3)(x). After considering all the materials available to me, and in light of the specific issues of this hearing, i.e., tuition reimbursement for a school year already completed, I saw no benefit to the appointment of a guardian. Had the hearing concerned events to occur in the future, such as a return to the CSE to draft a new IEP or locate a new placement, a guardian would likely be a necessity.
Notwithstanding the above, in all cases it is the DOE’s responsibility to ensure that a parent participates in the formation of his or her child’s education place as a mandatory member of the Committee on Special Education.
I also note that none of the letters submitted to the DOE, ostensibly to secure the student’s rights under the act to tuition reimbursement, were signed by .’s mother. The sole exception to this is the initiating demand for due process, which contains a clear signature of Mrs. H. See P-1.
The parents’ “ten-day” letter advising the DOE of the student’s unilateral placement and reservation of rights to pursue tuition reimbursement was submitted to the DOE by . See P-E. There is a place for a parent’s signature, but this signature does not match the signature affixed to the impartial hearing demand. Rather, the signature appears to be that of the aunt.
There is a handwritten note on the final notice of recommendation, first advising the DOE that the proposed placement was unobservable, then later advising the district as to the specific details making the proposed placement inappropriate for See P-D. The handwritten portions of this letter are unsigned. The facsimile confirmation sheet reflects that the letter was faxed to the Board of Education by the same advocate .
Lastly, the student’s tuition agreement does not appear to have been signed by mother, but rather her aunt. See P-H. The signature does not match the signature contained in the demand for due process, but it is congruent with the signature on the Ten-Day Letter.
In light of the above, I find that the parent was not involved in the CSE process for for the 2010-2011 school year, nor was involved in the determination to unilaterally place in a private placement for that period. How this affects the various prongs under Burlington/Carter is addressed below.
IV PRONG I
The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). 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." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). 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). The student's recommended program must also be provided in the least restrictive environment (“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 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.
Not all procedural errors invalidate an IEP under the IDEA. See 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 decisionmaking 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)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
FAPE, at its most basic level, stands for the idea that a child’s individual needs are accounted for when constructing a special education program. The program addresses the child, not the child’s classification or diagnosis. To perform this task, stakeholders – here members of the CSE – must identify the abilities (and deficits) of the child (present levels of performance and needs).
The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or
FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). 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 also 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. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982). The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
The CSE convened on April 21, 2010 to develop an IEP for the student for the 2010-2011 school year. See Tr. 18; P-C or D-1. The CSE continued .’s classification as . See D-1. The team recommended she be instructed in a special class in a community school with related services, specifying a classroom containing no more than twelve students and one teacher with the support of one classroom aid, or a class. Id. at 1, 12 The following related services were recommended to continue from the previous IEP: counseling twice weekly for thirty minutes a session in a group no larger than three students; individual twice weekly for thirty minutes a session; and individual therapy three times weekly for thirty minutes a session. Id. at 14.
The student’s IEP was subsequently amended to include the related service of special education transportation, specifically the service of an air-conditioned mini-bus. See D-2.
, a licensed school employed by the DOE at CSE for approximately ten years, testified on behalf of the DOE. 11/2/11 Tr. Pg. 12, 14. She testified as to her background, education, and duties while with the CSE. See 11/2/11 Tr. Pg.14-17. Overall, I found her testimony to be credible and reliable.
a. Parental Participation
I find that, as a matter of law, the resulting IEP developed by the CSE on 6/21/2011 fails to offer FAPE. As discussed above, the failure to include a parent in the CSE’s deliberations is a serious, fatal procedural violation. The failure to include the parent, as well as the failure to document the reasons .’s parents did not attend the CSE amounts to a significant impediment to the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. Had the CSE taken such efforts to ensure the parents’ participation, and in this instance I refer to both the mother and father, than the resulting IEP would likely reflect the parents’ wishes. Notwithstanding the student’s aunt’s participation, there is nothing in the record to suggest that the aunt’s input was an accurate reflection of the parents’ wishes. Had the CSE documented its attempts to secure the parents’ participation, and consequently required the parents to demonstrate that ’s aunt, in fact, represented both theirs and the student’s interests, the CSE would have met its duty to ensure parental participation. That did not occur.
. testified that she gave . permission to attend a CSE meeting. 11/14/12 Tr. Pg.
89. However, there is no other indication throughout the remainder of the record to corroborate this fact. In light of my concerns surrounding .’s mother’s testimony discussed above, I cannot accept her testimony here as the basis for an acceptable reason for the CSE to conduct a meeting without parental input. Likewise, I cannot accept .’s testimony concerning her authority to represent . in any capacity, no matter how well meaning. While I found . competent to testify, any grant of authority must be reliably described by a parent making the grant, or be described in some formal document. Anything less is simply unreliable in a formal forum.
There is nothing in the record that describes the parents’ desires or interests for T.H. with any degree of reliability. (See section above) Without such, it is impossible for me to determine whether the aunt fairly and accurately represented ’s and the student’s parents’ interests during the events underlying the instant impartial hearing.1
b. April 2010 IEP
But for the above finding, I would have held that the DOE met its burden in demonstrating FAPE was offered to the student for the 2010-2011 school year.
.’s IEP described her then-present levels of performance as consisting of Reading comprehension, decoding, and mathematics on the mid- to end-of second grade level. D-1, pg. 3. It describes her reading on a literal level, with an inability to infer meaning from the text, as well as exhibiting and decoding questions. Id. As for math skills, she was able to (addition and subtraction), but showed a to complete word
1 The issue here is not whether .’s aunt has aided the family in their efforts to interact with the DOE concerning the student’s special education experience. Nor is it a question of for her niece. Had the family executed some formal instrument authorizing . to operate on the family’s behalf, the entire question of parental participation would be a non-issue . would clearly and unequivocally have such authority in that instance. In the alternative, had the CSE documented its efforts to secure .’s participation – or the father’s – and detailed an understanding of the parents’ incapacity or refusal to attend, that would at least be a factual assertion which could be considered. Unfortunately, there is nothing in the record that points to any such efforts by either party in this case.
Instead, and while not an issue in this hearing but still pointing to a larger question, I wonder whether, in fact, the parents ever requested special education services from the DOE in the first instance, or in the alternative whether the special education process was initiated by someone other than the family. That question was never answered, and the DOE waived any defense it might have had in asserting such for the purpose of the instant hearing. An answer to this question may very well reveal a long-standing breakdown in this family’s circumstances requiring the intervention of a wider range of support services than could ever be reviewed or detailed here.
It certainly subtextually appears, when reviewing the record as a whole, that has assumed the difficult responsibility of taking care of both . I strongly urge the family to immediately take all necessary steps to has the formal and recognizable authority to care for . in her mother’s place, should such be the desire of the family. problems, likely due to her delays in reading comprehension. Id. A description of her functional grade equivalencies was provided by her private school teacher and incorporated into the IEP. Id., See 11/2/11 Tr. Pg. 42.
is further described as presenting with “an disorder characterized by reduced with family, peers, as well as a classroom setting environment.” D-1, pg. 4. and having . Id.
The student’s described present levels of performance reflect the information available to the CSE. First, there is little difference between the child described in the IEP and that same child described in the teacher’s progress report. See D-4. Similarly, the DOE’s classroom observation contains nothing different than that contained in the April 2010 IEP. See D-6.
Next, the described as a child with “ ” who demonstrated with consistently . See D-5, pgs. 3-4, 5. I note that the report was issued in the spring of 2009, a year before the CSE meeting at issue. No follow-up report was produced by either party. Dr. stated in her report that .’s “ appears to be the at this time and requires .” D-5 at 5. . was recommended to receive a twelve-month program in a highly structured setting grouped with fellow students exhibiting language delays, not behavioral issues. Id. was also recommended to receive reading and math instruction to master basic skills. While a number or related service recommendations were made in the report, I will not review those as the parent has not challenged the CSE’s related service recommendations. See PA, D-5 at pg. 6.
Overall, I find that the CSE developed a comprehensive description of present levels of performance and needs based on the materials available to the team. I cannot locate any source that describes T. needs or present levels of performance. Nor did the CSE. See 11/2/11 Tr. Pg. 40.
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. 8 NYCRR § 200.4(d)(2)(iii)(b).
In reviewing .’s goals as contained in the 4/21/2010 IEP, I find there are three goals that address math computational skills, in the areas of multiplication and time, as well as assessing comprehension in word problems D-1, pgs. 7-8. Each goal required 80% mastery in a field of twenty problems to demonstrate mastery. Progress was to be reported three times a year. The IEP contained two goals to address T.H.’s decoding skills and sequencing skills (D-1, pgs. 7, 10), and three additional goals to address her reading comprehension abilities, specifically requiring her to improve her sequencing abilities and her skill to describe favorite characters from read stories (D-1, pgs. 8, 10).
Conversely, there are no goals that address her pragmatic language needs except for one goal assessing her ability to work cooperatively with other student. D-1, pg. 7.
I note that the related services progress report available to the CSE contained a number of recommendations, including a description of present levels of performance, her needs, and a duo of proposed goals. See D-3. These goals were incorporated into the IEP, and the description was copied wholesale. See D-1, pgs. 5, 10. In that the CSE adopted the recommendations of the related service provider, I find no reason to substitute my judgment for the committee in this instance.
However, the CSE should have had either a progress report or the actual occupational therapist available to provide the CSE information on needs and abilities, as well as to assist in developing appropriate goals.
I find that the present levels of performance reflect the information communicated to the committee by .’s private school teachers and accurately reflect her abilities and needs at the time of drafting. I further find that goals as drafted are targeted to the identified needs of the student as articulated in the present levels of performance, except in the area of pragmatic communication. This is a clear weakness for the student and more attention should have been paid to address this need. I find that one goal addressing the student’s ability to cooperatively work with her classmates is insufficient to address this need. I also can find no goals that appear to address the student’s occupational therapy needs. I do not find these errors to invalidate the IEP. Had the hearing been brought before the end of the school year in question, I would have directed the parties to return to committee to solicit progress reports on the subject of the and to draft appropriate related services goals.
Regarding the claim for individualized instruction, I find one reference to such a recommendation being contained in the report. See D-5. In reviewing the record, I can find no other credible reference that . requires instruction for a portion of her day to meaningful benefit from her program.
In that never attended the recommended placement described in the DOE’s final notice of recommendation, I decline to consider whether the placement itself would or would not have appropriate for I am satisfied that the placement was in a position to implement the IEP at the start of the school year and make no further inquiry past that point. See Testimony of , 3/22/12 Tr. Pgs. 11-12, 24, 27. I find the testimony offered at hearing concerning the placement itself outside of implementation would otherwise constitute speculative and/or retrospective testimony not necessary to the formulation if my decision and in contravention of the Second Circuit’s directions. See R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 48 (2d Cir. 2012)(“[W]e hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.”)
For the foregoing reasons, I find that the DOE has failed to show that FAPE was offered to the student for the 2010-2011 school year due to the failure to ensure the parents’ participation in their daughter’s IEP.
V PRONG II
A board of education 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 Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993); 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. 471 U.S. at 370-71. "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. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148.
A private school placement must be "proper under the Act." Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This has been interpreted to mean that the private school must have offered an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 and 115 (2d Cir. 2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to maximize the student's potential. 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" Frank G., 459 F.3d at 364.
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.
Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65.
Before going any further, it is important to stress that the sole reason the analysis advances to this prong is due to the CSE’s failure to include the parents in their determination, or otherwise account for their absence.
I must dismiss the parents’ claim as there is no proof that the parents are indebted to .’s tuition for the 2010-2011 school year. As discussed above, it does not appear either of the parents’ signatures is affixed to the tuition contract.[2] Dr. , a Dean at , offered an affidavit stating, part, that “[t]he parents of [T.H.] have not paid any tuition, in accordance with an agreement that Mr. and Mrs. [ .] would contact an advocate and seek funding under Connor’s provision.” See P-I. The affidavit does not specify that the parents are indebted to the private school. Id. Nor did testify that she or her husband was indebted to the private school. I can identify no basis for finding that the parents have a genuine debt ’s tuition for the 2010-2011 school year.
In so finding, I can identify no reason to assess the appropriateness of the parents’ unilateral placement. I decline to make any findings on this point.
Now, therefore, it is hereby
ORDERED that the DOE shall make every effort in accordance with the requirements of the Commissioner’s Regulations, specifically but not limited to 8 NYCRR § 200.5(d) (4), to ensure that ’s parents participate in future Committee on Special Education meetings, including the documentation of the parents’ inability or refusal to attend; and it is further
ORDERED that, and only if the parents or lawfully appointed guardian have not attended the most recently held CSE meeting, a new CSE shall convene within thirty (30) days of this decision to review and recommend a free appropriate education plan for in her least restrictive environment with the input of her parents or her lawfully-appointed guardian in accordance with the requirements of the Commissioner’s Regulations, specifically but not limited to 8 NYCRR § 200.5(d) (4); and it is further
ORDERED that the instant demand for due process and claims stated therein are otherwise dismissed on the merits. Dated: January 31, 2012
__________________________________
TIMOTHY M. MAHONEY, ESQ.
Impartial Hearing Officer
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 ON NOVEMBER 15, 2011
PARENT
A Impartial Hearing Request 6/21/11 4 pages B Program Description Undated 1 page C IEP 4/21/10 15 pages D Final Notice of Recommendation 7/14/10 2 pages E Ten Day Notice 8/18/10 1 page F Progress Report 6/14/11 4 pages G Attendance Record 2010-11 1 page H Enrollment Contract 2010-11 1 page I School Affidavit Oct. 2011 1 page J Parent Tax Return Undated 2 pages
DEPARTMENT OF EDUCATION
1 IEP 4/21/10 15 pages 2 Wavier of IEP to Amend IEP 4/29/10 1 page 3 Report 2/16/10 1 page 4 Teacher Report 3/3/10 1 page 5 Evaluation April 2009 9 pages 6 Observation 2/2/10 2 pages 7 Final Notice of Recommendation 7/14/10 1 page
IMPARTIAL HEARING OFFICER
I Letter to Parties 8/12/12 2 pages II Signed Subpoena 9/27/12 1 page III Doctor’s Letter and Letter from Parent Granting
Permission to Proceed 11/30/12 2 pages
Footnotes
[2] Comparing the mother’s signature on P-A, pg. 3 and IHO-III, pg. 2 and the father’s signature on P-J, pg. 2 with the signature reflected on P-H, pg. 1. I also note that the contract itself does not identify the Parents or the student. See P-H.