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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: March 20, 2013
May 2, 2013
May 9, 2013
May 17, 2013
Actual Record Closed Date: June 3, 2103
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2013
Attorney — Student
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2013
ESQ., Attorney — Student
Parent (DID NOT APPEAR) — Student
Department of Education Representative — DOE
Teacher Assigned, Committee on Special — DOE
Education (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2013
Attorney — Student
Parents
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2013
Attorney — Student
Parents
School Psychologist (Via Telephone) — Student
DR., Chairperson Designee CSE — DOE
Lead Teacher (Via Telephone) — DOE
By Complaint dated January 29, 2013, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The matter did not resolve through resolution. On March 14, 2013, a prehearing conference was held. There were no appearances.
A hearing date was held on March 20, 2013. Upon the application of the parties on the 16th of April, 2013, the decision date in this matter was ordered to be reset to May 15, 2013. The reason given was witness availability and due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The parties were provided notice of this decision. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 1)
New hearing dates were scheduled for May 2, 2013, May 9, 2013 and May 17, 2013.
Upon the application of the parent on May 15, 2013, the decision date in this matter was ordered to be reset to June 14, 2013. The reason given was witness availability and due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The parties were provided notice of this decision. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 2)
FINDINGS OF FACT
The Student is a old who is eligible for services as a Student with a . (28; Exh. 1)
The Student has been tested with a Full Scale IQ . (Exh. 5) The Student has in all areas of academics because of a . (Exh. 1) He has , grammar, and writing mechanics. (Exh. 1) The Student requires , a small class size, counseling, modified classes. (92-93) The Student also requires help . (104) He is in class. (155)
According to a update by dated March 13, 2010, the Student presented with variable performance. (Exh. 4) Significant were noted. The Student had difficulty mediating between competing demands for , lacks skills to function independently. Ms. recommends a small, highly supportive educational program for learning disabled students.
A observation on April 14, 2011 revealed that the Student responded well to redirection and prompting. (Exh. 5) It indicates that the Student does need the teacher’s active support during and throughout the class period because it does not take much to distract the Student. The Student was observed losing his focus.
The CSE review team in May 3, 2012 consisted of , the general education teacher, the parent, and a school psychologist, representatives from the school. (30) The school representatives were not on the phone for the entire meeting. (146-147). The parent was concerned about the size of the ICT class. (31) The school was concerned at well. (Exh. 8) Both the parent and the school indicated that the Student would be lost in a large group. (Exh. 8)
The team recommended integrated co-teaching for the Student. (27) The team relied upon the school reports and the teacher’s verbal reports during the meeting. (28)
The team later met in June, 2012 without the Student’s teachers. (36) The team recommended these goals: that the Student improve his reading comprehension skills by recalling and writing a story and by using graphic organizers; that the Student improve his math computation skills by solving involving finding the range, mean, mode and average of a given series of numbers; that the Student will solving skills by solving 10 word problems involving the addition and subtraction of fractions and decimals; that the Student will improve writing skills by writing three summaries about books read aloud or independently; that the Student will write a 3 paragraph story using the complete elements of the story, initiating event, explanation of the character’s feelings, goal oriented behavior, evidence of a plan, direct consequence and beginning of a resolution; that the Student will be able to respond to and offer input appropriately during an exchange by terminating a conversation within a socially acceptable parameter; that the Student will increase visual motor skills by establishing and with peers and adults while participating in a group activity; that the Student will ; that the Student will demonstrate the ability to ; that the Student will be able to in a group activity by working . (Exhs. 1, B)
These goals were not discussed with the parent at the meeting. (145) Teachers from the Student’s classes at participated for only part of the meeting. (147) An ICT class was offered, with related services of speech and language therapy 1x30, occupational therapy 1x30, counseling 1x30. (Exh. 1) There are up to 34 students in the classroom. (85)
The parent signed an enrollment contract on July 20, 2012. (Exh. D)
The parent visited the proposed school in September, 2012. The parent was not able to observe an ICT class. (151)
The parent’s counsel sent the District a letter rejecting the placement on August 22, 2012. (Exh. J)
The “ program at is designed to mainstream students as much as possible. (Exh. E) There is individual and small group instruction. The school conducts a formal screening of the students. Students are assigned mentors who meet with them on a daily basis to work on organizational and planning skills. are available. College guidance services are offered.
For the ninth grade, the Student received instruction in Math, English, French, Biology, Health, Art, Gym, History. (Exh. F) Many of his classes are modified. (93, 99, 100, 101) He receives a mainstream history class. (93) The History class is 15-1, Math is 15-1, English is 18-1, French is 10-1, Biology is 16-1. (94) Health is larger at 20-1. (94) Some of the classes are taught by certified teachers but not all. (94-95)
The Student goes to extra support sessions. (95) He gets counseling on a daily basis. (104) He often works on organization skills during counseling. (103) The Student checks in with before and after school. (131-132) The Student gets mentoring services. (136-137) therapy is provided. (138)
He has made progress in terms of social issues, reading, organizing and editing text. (95-96) He has been generating better and better papers. (96) He takes a while to start what he writes, but the end product is accurate and thorough. (99) He has been able to initiate stories this year. (106) Tests are often taken with another teacher or faculty member. (98-99) The Student has made progress in terms of using a calculator, grasping math concepts. (102-103)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the Individualized Education Program (IEP) developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
On the first criterion, all of the evidence before the CSE indicated that the Student requires a small class size to address focus and executive functioning issues. The parent and representatives from the school indicated that the Student requires a small class size. The update from also indicates that the Student needs a small class size. The District only conducted an observation here, and that observation is consistent with the information provided by the parent, the school and Ms. . The observation indicated that the Student lost focus even in his small class at and needs a teacher’s active support during and throughout the class period. The IEP does not provide this sort of support. The management needs section on the IEP do not address the Student’s focusing issues. Under the circumstances, I agree with the parent that the CSE should have provided the Student with a small class size to address his . See Sudbury v. Mass. Dep’t of Elementary and Secondary Educ., 762 F. Supp.2d 254 (D. Mass 2010); Gellert v. District of Columbia, 435 F. Supp.2d 18 (D.D.C. 2006).
Additionally, the teachers from the school did not participate in the review for the entire meeting. The teachers from the school discussed the Student’s performance and what levels they thought the Student was at. Then, the team went on to write the IEP and issue recommendations for the Student – without the teachers. Accordingly, the team recommended a program that was not in sync with the teachers’ recommendations.
Under the circumstances, the parent prevails on the first criterion.
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The record indicates that the Student has delays in all areas of academics because of a lack of focus and issues with executive functioning. The Student requires small class size, extra support, modified instruction. The record indicates that School provides such interventions. The Student’s class sizes are small and the curriculum is modified in many of these classes. Modifications allow for a lessened workload and less reading. The Student gets extra support in math and in other subjects. The Student gets daily monitoring with a school psychologist to . The Student also . The Student has made progress during the year, in particular regarding writing.
The District contends that the school did not provide the Student with related services as per the IEP mandate. However, a parental placement does not have to conform to a Student’s IEP, particularly where, as here, it has been deemed defective. As stated in In A.D. and M.V. on behalf of E.D. v. New York City Dep’t of Educ., 690 F. Supp.2d 193 (S.D.N.Y. 2010):
Because "a private placement need not provide . . . an IEP for the disabled student," Frank G., 459 F.3d at 364,
[the school] had no duty to conduct the tests which underlie a successful IEP. Rather, [the school’s] appropriateness as a unilateral placement is determined by whether [the school]
"provide[d] education instruction specifically designed to meet the unique needs" of the student. Gagliardo, 489 F.3d at 115 (citation omitted).
In sum, I agree with the parent that the was an appropriate placement for 2012- 2013. The parent prevails on the second criterion.
On the third criterion, the IDEA allows 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, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The District argues that the parent did not consider the District placement, pointing to the fact the parent indicated that they would be bringing a due process complaint prior to receiving a placement offer. While this may be a basis for this IHO to reject certain FAPE denial claims relating to “placement” in the Complaint, it should not be a basis for denying relief on equities. The parent is entitled to bring claims based on the IEP itself without viewing the placement. The record indicates that the parent rejected the IEP because it did not provide for, inter alia, a small class size. Moreover, the record indicates that the parent complied with all District demands and requests and provided the District with appropriate notices here. N.R. v. New York City Dep’t of Educ., 2009 WL 874061 (S.D.N.Y. 2009) at *6-*9. The District does not contend otherwise.
Accordingly, I find that the parent prevails on the third criterion and is awarded tuition reimbursement for 2012-2013 at . Dated: June 14, 2013
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL: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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Hearing Request/Complaint dated 1/29/13, 4 pgs. B IEP dated 6/11/12, 16 pgs. C Final Notice of Recommendation dated 8/8/12, 1 pg. D School Contract dated 7/20/12,[2] pgs. E School Program Description, 3 pgs. F Class Schedule, 1 pg. G Attendance Record dated 1/7/12, 1 pg. H Report Card, 1 pg. I Affidavit from School dated 1/9/13,[1] pg. J Proof of Payment, 3 pgs. K Notice Letter dated 8/22/12, 3 pgs. L Rejection Letter dated 8/13/12 and 9/12, 3 pgs.
IMPARTIAL HEARING OFFICER
Footnotes
[1] Timelines Notice, 1 page
[2] Timelines Notice, 1 page