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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 10, 2013
May 28, 2013
June 18, 2013
June 25, 2013
July 24, 2013
August 7, 2013
September 11, 2013
September 16, 2013
Actual Record Closed Date: October 18, 2013
Hearing Officer: Linda Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2013
Advocate
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2013
telephone Advocate
CSE Representative Dept. of Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2013
Advocate
CSE Representative — DOE
Education Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2013
Advocate
CSE Representative — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2013
via telephone Advocate (via telephone)
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2013
via telephone Advocate
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11,
2013, via telephone Advocate
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16,
2013 Advocate (via telephone)
CSE Representative — DOE
The matter of . came for hearing before me on April 10, 2013, the date of my designation as impartial hearing officer, pursuant to the Individuals with Education Act (“IDEA”), 20 U.S.C. §1415(b)(2). On April 4, 2013, I was appointed as impartial hearing officer. On April 10, 2013, the representative requested a pendency order and requested that the Department of Education (“DOE”) provide with related services pursuant to the May 30, 2012 Individualized Educational Program (“IEP”) of twice a
Hearings were held on April 10, 2013, May 28, 2013, June 18, 2013, June 25, 2013, July 24, 2013, August 7, 2013, September 11, 2013 and September 16, 2013. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted (Exh. I to VI). The last extensions were the result of the request for posthearing submissions. The parties submitted their post hearing closing statements on October 18, 2013. The current record close date is October 18, 2013 and the compliance date for issuing a decision is November 1, 2013. Appended to the record are lists of persons in attendance and of documents submitted into evidence.
The hearing was requested by the to challenge the May 30, 2012 review and recommendation of the Committee on and to obtain funding for a unilateral placement at the School (“ School). The School is a private school that is not approved by New York State as a education school. The brought the hearing seeking prospective payment for the School for the 2012-2013 school year. The tuition for School for the 2012-2013 school year was $49,000 (Exh. H).
In the due process request alleged that alleged that the Dept. of Education failed to provide a free and appropriate public education (“FAPE”) for the 2012-2013 school year on procedural and substantive grounds (Exh. A at 1) by failing to inform the of the IEP meeting on May 30, 2012 and alleging the IEP team was not properly composed as there was no general education teacher or parent member (Exh A at 2). The challenged the recommended program because there were no current to support the related service mandates and the present for the related services were omitted on the May 30, 2012 IEP and inconsistent academic levels were reported on the IEP. The alleged that the annual and the related on the May 30, 2012 IEP were not appropriate and there was no (“ on the May 30, 2012 IEP (Id).
BACKGROUND
The student is a year old girl who was classified as , who had attended the (Exh. 2 at 1).
THE POSITION OF THE PARTIES
The Dept. of Education has recommended that the student be placed in a class in a ized school in , and receive related services of , . The s disagreed with the Dept. of Education’s placement and have unilaterally placed the student at the School for the 20122013 school year and requested the Dept of Education directly pay the School for the School tuition.
THE DEPT. OF EDUCATION’S CASE
The CSE representative was present on behalf of the Dept. of Education and maintained that the student was appropriately placed in the proposed class and the IEP was reasonably calculated to enable the student to receive an educational benefit and FAPE was offered for the 2012-2013 school year (trans. 14; IHO Exh. VIII at 1). The first witness, , was a teacher assigned to . Ms. testified that she had a Master’s degree in education and was licensed and held a state certificate in as well a education and was employed by the Dept. of Education for (trans. 32). She stated that the part of her duties was to participate in IEPs with schools and parents (Id.). She stated that she was present at the May 30, 2012 review as was Ms. , the School and Ms. , the School Principal and she believed that the ,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The standard applicable to a request for reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: 1) the services offered by the District are inadequate or inappropriate; and 2) the services selected by the are appropriate; and 3) equitable considerations support the ’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]) The DOE bears the initial burden of prong one pursuant to legislation. See Chapter 583 of the Laws of 2007. The District bears the burden of demonstrating the appropriateness of the program recommended by its CSE. (Matter of Child, 22 Ed. Dept. Rep. 487; New York State Review Officer's Decision, Nos. 97-44, 92-7, 93-9) The burden is met if the District establishes that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8NYCRR 200.6[1][1]). The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (34 CFR 300.343-346, 8 NYCRR 200.4 and 200.5)
The ’s advocate asserted many procedural flaws in the May 30, 2012 IEP: the was not given notice and did not attend the meeting in person or by telephone; there was no general education teacher and no parent member present; the CSE did not conducted timely and proper s to support the recommended program of a ized school with related services; the CSE failed to provide the present levels of performance for the related service; there was no to address the student’s needs on the IEP; and the academic and related goal were inappropriate (Exh. A at 1 to 2).
The considered the type of procedural flaw which would result in a denial of FAPE in (Application of the New York City Dept. of Educ., Appeal No. 08-037). The noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the ’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007]) 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).
In order to be procedurally correct the CSE which met on May 30, 2012 would have to have been constituted in full accord with the provisions of the Education Law Section 4402, as well as the provisions of the regulations of the Commissioner of Education of the State of New York Part 200.3(a). I credit that ’s testimony that he participated in the May 30, 2012 and he recalled that the staff member provided a great deal of information. I credit the testimony of the education teacher who stated that no general education teacher was present as no general education program was considered. I find the failed to establish that the team was not properly composed. Moreover, I find that the and the School Principal, who participated in the IEP meeting on May 30, 2012, provided input and were treated as full members. I credit the testimony of the education teacher, who was present and stated the IEP was developed with input from the and School Principal (trans.42-43). I find the was present and the School Principal was actively involved in the May 30, 2012 IEP meeting.
The advocate asserted that the CSE did not consider current in recommending a 12:1:1 program in a ized school with related services. I find no for related services was submitted to support the recommended related services; however, I credit the testimony of the education teacher that the Principal of the School participated to provide the academic functioning levels and participated in the development of the academic and related service (trans. 42-43). I find the CSE relied on the Principal of School to develop the related service mandates and the related service .
The ’s advocate challenged the lack in the IEP. I find the IEP addressed the management needs by the related service mandates and the crisis management (Exh. 1 at
2) and I find the IEP indicated there was a (Exh. 1 at 12) and the developed by the School (Exh. 3) addressed her al needs. Further, I find even the complete absence of an did not render the IEP procedurally invalid as long as the IEP itself considers strategies. See. A.C. ex rel M.C. v Bd. of Education of the Chappaqua Sch. Dist., 553 F.3d 165, 172(2nd Cir. 2009)
The ’s advocate asserted that the were not appropriate. I find that the academic and related service corresponded to the student’s needs and were appropriate. I find that the annual in each area of the identified need must be set out in the IEP describing what the student has a reasonable chance of attaining in a year.
Testimony adduced at the hearing established that the student was appropriately placed in the proposed class with children as required by the Regulations of the Commission of Education (8 NYCRR 20.6(a)(3).
Based on the foregoing I find the district established that FAPE was provided to the student during the 2012-2013 school year.
Having found that the district established the first prong, I need not address the second prong, however, I note that the s failed to establish the appropriateness of their placement at the School. To meet the second prong, the s must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's education. The fact that the facility selected by the to provide educational services to the child is not State-approved as a school for children with is not dispositive of the ’s claim for tuition reimbursement. Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]. I note that the School was not a school and it was undisputed that the student required a program. The has ruled that a private program is not appropriate when the student required a program. It was undisputed that the student required a month program. See Appeal No. 11-057. Based on the foregoing, I find that that the s has not met his burden regarding the unilateral placement of the student at the School for the 2012-2013 school year.
Having found that the ’s placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the ’s position. However, I note that the was never questioned as to whether he would have considered a public school placement. Further, I do not credit the testimony of the or the Principal of the School who considered the tuition for the 2012-2013 school year was a debt. Based on the foregoing I deny the ’s request for direct payment for the tuition at the School for the 2012-2013 school year. Dated: October 29, 2013
________________________
LINDA AGOSTON, ESQ.
Impartial Hearing Officer LA: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 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..nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 10, 2013
A Demand for Due Process, 2/5/13, 4 pp. s
B IEP, 5/30/12, 11 pp. s
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 28, 2013
I Extension Decision, 4/10/13, 1 p.
II Extension Decision, 5/28/13, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 18, 2013
1 IEP, 5/30/12, 14 pp. District
2 report, 4/28/10,[6] pp. District
3 Plan, 12/25/11, 3 pp. District
4 Report, Fall 2012, 5 pp. District
5 FNR, 6/11/12, 1 p. District
7 Events for the student, various dates, 1 p. District
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 25, 2013
III Extension Decision, 6/25/13, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 7, 2013
IV Extension Decision, 8/7/13, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 11, 2013
V Extension Decision, 8/28/13, 1 p.
POST HEARING SUBMISSIONS
VI Extension Decision, 9/30/13, 1 p. IHO VII Statement, 10/18/13,7 pp. IHO VIII Statement, 10/18/13, 6 pp IHO C Description, undated, 2 pp. D 1/13, 5 pp. E Class Schedule, 2012-2013, 1 p. F Ten Day Notice, 8/15/12, 2 pp. G Tuition Contract, 2012-2013, 1 p. H Affidavit of Payment, 5/9/13, 1 p. I Proof of Benefit, 11/25/12, 4 pp.
Footnotes
[6] IEP meeting notice, 1/26/12, 4 pp. District