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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: April 3, 2013
April 29, 2013
June 10, 2013
July 10, 2013
Actual Record Closed Date: July 29, 2013
Hearing Officer: Jeanne M. Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2013
JOSEPH FEIN, Attorney (Via Telephone) — Student
NO APPEARANCES
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2013
JOSEPH FEIN, Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2013
JOSEPH FEIN, Attorney — Student
Principal (Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2013
JOSEPH FEIN, Attorney — Student
(Via Telephone) — Student
(Via Telephone) — Student
INTRODUCTION
On February 22, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of
BACKGROUND
is a year old student who has been unilaterally placed by his Parents at The The student has attended since November 2013. (t. 185) The student is currently classified as This classification is not in dispute. The Parents argue that the DOE has failed to provide with a by failing to develop an appropriate Individualized Education Program (IEP) or make an appropriate placement recommendation. The DOE asserts that has been provided by the crafting of an appropriate IEP and proper placement recommendation
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Parents notified the New York City Department of Education (“DOE”) prior they had a child requiring but did not hear anything from the DOE. (t. 168-9) the Parents went to the DOE in person, without an appointment, regarding They brought with them a copy of the IEP developed by the who reviewed the IEP and stated that they would honor it and quickly printed out a Final Notice of Recommendation (“FNR”) for a public school placement (Ex F) in a class with a The recommended placement The Parent told the DOE representatives that would not work but they said it was what they had and were recommending. (168-71).
The Parent visited the recommended placement shortly after receiving the final notice of recommendation (FNR). She toured the school with the Assistant Principal and found that it was not appropriate. She felt that the students , the classroom She did not feel that they could deal and that the other students as he is on . (Ex. G) She also noted that the classroom is to . (t. 172-75) On September 27 the Parent faxed a rejection letter to the Committee on Special Education (CSE) and stated that they were enrolling in the unless they received an appropriate placement from the CSE.
After sending in the rejection letter the Parent received a call from the DOE asking that she bring in for an interview to which she agreed. She went for the interview and a social history was taken. The Parent states that she asked about a public school in her area and was told that they would look in to it. At some point after that she received a call from the DOE and was told that the public school she had asked about did not have a slot for but that they would be sending out a second FNR. The Parent received the second FNR and it was the exact same placement as recommended in the first FNR. The Parent visited the placement a second time and found it was the same as the first visit. Prior to the visit she called the Program Director at the school to get more information. She was advised that they did not have in the school at that time and she would have to go after school to a center with When she visited she also spoke to the classroom teacher about the students. (t. 176-179, 36,38) On October 31 the Parent sent a second rejection letter to the CSE detailing her objections to the placement. Among these objections was that the teacher is following a 1st grade curriculum and is starting in the class is actually assigned to another student but assumes the responsibility as assistant teacher for the entire class. (Ex. I) She further states she has enrolled at
On November 13, 2012 an IEP meeting was held and IEP created for . (Ex1) Prior to the IEP meeting the CSE team had a pre-conference and discussed the results of and any other information that they had. The purpose of the pre-conference is to make sure that they have the information that they need. They do not make any decisions or come to any conclusions. (t. 83-85) The IEP meeting was attended by DOE employees, the Parents of as well as, teacher at JCSE. (t. 65) In the course of the IEP meeting was classified as . This classification was based on the student’s history and documents in the file, testing which had recently been done, and the reports from teachers. (t. 66) towards the end of the year the school
In the course of the IEP meeting goals were developed. (t. 71-75, 87-88) Dr. testified that they look to find the most appropriate program and consider
A third FNR was sent to the Parents dated 11/15/12 which once again recommended a (Ex 2) On November 19, 2012 the Parent sent a third rejection letter for once again stating that she found it inappropriate and questioning why they would repeatedly recommend the same program which she had already stated she found inappropriate. (Ex. J)
The Individuals with Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A includes 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 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).
There is a three prong test that is the legal standard applicable a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.
I find that the DOE failed to provide the student with for the 2012-13 school year based procedural and substantive deprivations in that they failed to consider the input of the Parents in the creation of the IEP thereby depriving the Parent of meaningful participation in the review.
The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of . A hearing officer “may find that a student did not receive only if the procedural inadequacies: (a) impeded the student’s right to significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203).
I found the testimony of the Parent credible when she detailed the steps that the Parents took in attempting to obtain an appropriate placement for . The testimony regarding the first IEP meeting in September has not been rebutted. While it was an impromptu meeting, it was formal enough that the CSE relied on the IEP and issued an . I credit the Parent when she testified that she told the CSE, at that meeting, that a would not work for and was told that was what they had and what would be recommended. I further credit the Parent when she testified that at the IEP meeting of November 13, 2012 she again disagreed with the recommendation and explained her reasons for doing so, as well as explaining that she had been sent 2 prior FNR’s with the same placement recommendation of . To continue to make the same recommendation for a three times without addressing this fact, and giving the Parent a clear reason for this deprives the Parent of meaningful participation as well as giving the appearance that the recommendation was pre-determined.
The SRO noted in Application of a Student with a , Appeal No. 10-037 that “..school districts are not required to maximize the potential of students with … 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). The SRO further notes that “…FAPE must be available to an eligible student ‘who needs special education and related services even though the student has not failed or been retained in a course or grade, and is advancing from grade to grade.” (34 C.F.R. Section 300.101 (c) (1); 8 NYCRR 200.4 (c) (5).
I find that the DOE failed consider the input of the Parent when considering a program recommendation thereby depriving them meaningful participation which resulted in a denial of and a deprivation of educational benefit.
I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. I find the testimony, and evidence submitted by the parent support this finding. The Parent has the burden to prove that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. I found the testimony of the Parent and the teacher and administrator for credible. The testimony supported the Parents position that the student is progressing socially, emotionally and academically. The testimony supports a finding that the school has crafted an individualized program that meets the student’s needs. While the program must be one that is reasonably calculated to produce educational benefit for the student it need not “meet the IDEA definition of a …or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G., 459 F3d at 364-65. The DOE did not address the curriculum at in a substantive way.
The third prong of the test for tuition funding is whether the equities favor the Parent’s position. I find that the Parents cooperated fully with the IEP process. They contacted the DOE prior and having had no response went to the DOE with the ERSD
IEP. They visited the recommended placement 2 times and participated in a second more formal IEP meeting in November. The Parent notified the IEP in each of 3 rejection letters of the intent to place the student in JCSE. I find the Parent credible and that the Parent fully complied with the CSE. In view of the foregoing I find the equities favor the position of the Parent.
The Parent seeks tuition in the amount of with an additional for the cost of for and . The Parent concedes that the should be deducted from the tuition but denies that there are any other to the program.
In addition, the Parent testified that they have paid a total of to the school towards the tuition. (t.187) However, the documentation from the school reveals a payment of only . In view of the foregoing the reimbursement
ORDER
Therefore, it is hereby ordered that the Department of Education shall provide retroactive, direct payment of the tuition at for the 2012-13 school year in the amount of to the Parents and provide transportation. Dated: August 13, 2013
______________________
JEANNE M. KEEFE, ESQ.
Impartial Hearing Officer JK: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 ON JUNE 10, 2013
1. NYC DOE IEP, dated 11/13/12, 11 pages District
2. Final Notice of Recommendation, dated 11/15/13, 1 page District
3. for , dated 9/27/12, 4 pages District
4. Parental Letter for Initial , dated 8/27/12, 1 page District
5. Annual Review, dated 1/23/12, 3 pages District
6. Annual Review, dated 1/23/12, 2 pages District
7. Evaluation, dated 12/22/11, 3 pages District
8. Evaluation, dated 1/19/12, 5 pages District
9. testing dated 11/6/12, 6 pages District
10. Report, dated 4/2/12, 4 pages District
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 10, 2013
A. Impartial Hearing Request, dated 2/21/13, 12 pages Parent
B. IEP, dated 5/15/12, 15 pages Parent
C. NYC DOE , 10/22/12, 2 pages Parent
D. Annual
Review, dated 5/15/12, 6 pages Parent
E. Consent for Initial Provision
of Extended School Year Services, dated 5/15/12, 1 page Parent
F. NYC DOE Final Notice of Recommendation, dated 9/19/12,
1 page Parent
G. Parent Letter to CSE rejecting recommended school placement,
Dated 9/27/12,[3] pages Parent
H. Request by NYC DOE for , dated
9/27/12, 1 page Parent
nd
I. Parent letter to CSE re: 2 rejection of recommended school placement, dated 10/31/12, 2 pages Parent
J. Parent letter to CSE re: 3rd rejection of recommended school placement, dated 11/19/12, 1 page Parent
K. program
description, undated, 4 pages Parent
L. Fall 2012 Educational Plan, Fall 2012, 11 pages Parent
M. Report, Feb. 2013, 1 page Parent
N. Annual Report, Feb
2013, 1 page Parent
O. School Schedule 2012-2013, undated,[1] page Parent
P. Contract and addendum to Enrollment
Contract for Related Services, dated 11/1/12, 4 pages Parent
Q. notarized affidavit of tuition payment, dated 4/15/13,
Footnotes
[1] page Parent R. follow up medical report, dated 4/25/13
[3] pages Parent S. 2011 Federal Tax Return, 3 pages Parent POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER I. Statement of Adjournments and Extensions, undated, 1 page