NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 7, 2013
May 28, 2013
Actual Record Closed Date: June 11, 2013
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 7, 2013
Attorney — Student
Parents
Social Worker, Representative, CSE — DOE
Psychologist, CSE (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2013
ESQ., Attorney — Student
Parents
Teacher - by phone — Student
District Representative — DOE
By Complaint dated February 6, 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 Complaint alleged that the goals and objectives of the Individualized Education Program (IEP) were inadequate, that the Committee on Special Education (CSE) failed to review evaluative data of the Student, that the IEP recommended a class size that was , that the placement failed offer an appropriate grouping for the Student and was too large for the Student generally. (Exh. A)
The matter did not resolve through resolution. On March 21, 2013, a prehearing conference was held. A hearing was scheduled for April 1, 2013. The District moved to adjourn because of witness availability. This motion was granted. Hearing dates proceeded on May 7 and 28, 2013.
Three timelines extensions were granted in this matter. (IHO Exh. 1)
FINDINGS OF FACT
The Student is who is eligible for services as a Student with an . (Exh. 1)
The Student is reading on grade level equivalent. (Exh. F) He inflection, reading fluently and accurately. (Exh. F) He has . (Exh. F)
The Student performs math on . (Exh. F) He can . (Exh. F) The Student requires a concept. (Exh. F)
He benefits from small class size, individualized attention, requires constant refocusing, has difficulty retaining . (Exh. F, 47-48)
He does much better in decoding than in reading comprehension. (48)
The Student attended . (83)
On March 16, 2012, the CSE met. (11-12) , the Student’s teacher, attended. (Exh. 1) Meeting was Ms. a psychologist, and , an employee of the CSE who is a teacher. (24) Present levels of performance were based on the psychoeducational evaluation of the Student. (12) There was discussion that the Student was recommended for classroom with related services of therapy (13) This recommendation is for a community school. (14) The IEP included language about the Student being and argumentative with other students. (15) A second meeting was held because there was a problem with the computer system with the District. (16) Goals were appropriate for a first or second grader. (27) However, te IEP from the March meeting did not indicate any class size for the Student. (Exh. 1)
Thereafter, a second meeting was held. (Exh. 5) There was no appearance from the parent at this meeting. (Exh. 5) At this meeting the IEP indicated that there was a recommendation for a 12:1:1. (Exh. 5; 93-94)
The Final Notice of Recommendation was in Brooklyn. (Exh. 4)
The parent visited the school and felt the classrooms were very large and that the school was very large. (87)
At , the Student receives instruction from 8:50am to 4:00pm, with prayer for 15 minutes a day, bible study for 30 minutes a day. (Exh. D) The Student’s grades at the school were G and VG for the first term of the 2012-2013 school year. (Exh. E) The Student was using Fundations to decode. (Exh. E)
The Student receives instruction in phonics, comprehension, math. (Exh. F) He has improved in predicting outcomes for a story, identifying the main idea of a story. (Exh. F)
There are 50-60 students in the school. (45) There are two assistant teachers in the Student’s classroom. (49) There are 6 students in the classroom. (49) Instruction is broken down, there is refocusing of the Student’s attention, there are a lot of visual cues, there are a lot of props. (50)
The Student is in a reading group. (52) This is a multi-sensory program. (53) The Student progressed in his reading skills from a 1.6 grade level equivalent to a 2.2 grade level equivalent. (53-54) In math, he is in a group of 2 or 3. (55) The instruction is hands on. (55-56) He has moved up a grade level in the past year. (57) In writing, graphic organizers are used. (58) A writing tool called “Step Up to Writing” is used. (58) Progress has been noted in writing. (58-59)
There is a social skills worker who comes into the classroom every week to provide advice on how to address . (60) Social stories are provided to the Student. (60) The Student also receives occupational therapy, therapy, and counseling. (61-64)
Tuition is $30,000. (89)
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 and 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 IEP developed by its 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 . The parent and representatives from the school indicated that the Student requires a small class size. However, the first IEP did not provide any class size for the student, and the second IEP was written without the presence of the parent. This IEP recommends a class, but the record indicates that the Student needs a smaller ratio than this to progress. The District, in waiving its closing statement, appears to concede the inappropriateness of its recommendation. Under the circumstances, I agree with the parent that the CSE should have provided the Student with a smaller 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).
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 shows that the Student requires small class size, individualized attention, requires constant refocusing, accommodations to retaining information and to address impulsivity. He receives these accommodations . There are two assistant teachers in the Student’s classroom. There are 6 students in the classroom. Instruction is broken down, there are a lot of visual cues, there are a lot of props in the class. The Student is in a reading group. The Student . There are reports of progress from the Student in math, reading, writing. The District makes no argument on the second criterion. 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 record shows that the parent actively participated in the review process and allowed the District to observe the child, to assess the child, to conduct an IEP meeting. The District makes no argument on equities. The parent prevails on equities and is awarded tuition reimbursement for 2012-2013 at Dated: June 27, 2013
_______________________
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML;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 THE RECORD
DISTRICT
1 IEP, 3/16/12, 3 pages 3 2 Evaluation,1/26/12, 5 pages 3 CSE Minutes, 3/16/12, 1 page 4 - - Recommendation, 8/8/12, 1 page 5 IEP, 6/22/12, 13 pages
PARENT
A Complaint dtd 2/6/13, two pages. B Letter to CSE dtd 9/11/12 one pg. C Parent letter to CSE dtd 8/17/12, Three pages. D 2012-2013 class schedule, one pg. E Report Card 12-13 school year, One page. F Progress report, 1/10/13, two pgs. G Statement of payment 5/9/13, One page. H Proof of payment, 2/12 through 4/13, nine pages. I Tuition contract 4/17/12, one pg. J IEP, five pages. K Subpoena to Dept. of Education, Dtd 5/17/13, one page.
IHO
I Timelines Notices, 1 page