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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: July 9, 2013
August 14, 2013
Actual Record Closed Date: September 16, 2013
Hearing Officer: Susan Lushing, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2013
JENNIFER FRANK, Attorney — Student
Parents
District Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHOAPPEARED ON AUGUST 14, 2013
JENNIFER FRANK, Attorney — Student
Mother — Student
Father — Student
(Via Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
I was appointed as the Impartial Hearing Officer on March 25, 2013 after the recusal of a prior hearing officer. The impartial hearing was held on July 9 and August 14, 2013. Jennifer Frank Esq. of the Law Offices of Neal H Rosenberg represented the parent and Elsie Grandoit appeared for the Department of Education (DOE). A list of the witnesses and exhibits is appended to this decision. The compliance date was extended several times at the joint request of the parties with a final date of October 3, 2013. DOE’s CASE:
The DOE presented one witness and two documents in evidence as DOE Exhibits 1 and 2 in support of the recommendations for the 2012-2013 school year on the Individualized Education Program (IEP) of March 22, 2012: a classification was the assistant principal at until February 13, 2013. She was present at the IEP meeting held on March 22, 2012 as were the student’s general and . The team relied on various documents including provided by the parent as well as oral reports from her teachers. She did not recall if there was a Because the student was she was in class but when her teachers reported she needed she was also recommended for Her latest report card was available at the meeting with many grades of but Ms does not recall any specific discussion about it. In January the parents are usually notified if promotion is in doubt but the final decision would not be made until later in the spring especially for students PARENT’S CASE:
The parent called three witnesses and introduced 13 documents in evidence as Exhibits A-M. The parent agrees with the classification of on the IEP but argues that an and related services was not appropriate to meet the student’s complex needs. The parent is seeking tuition reimbursement
Two witnesses testified from is the director of the elementary school which during the 2012-2013 school year had
FINDINGS OF FACT AND DECISION
A school district may be required to reimburse parents for their tuition costs if it fails to offer a free and appropriate public education (FAPE), the school selected by the parent is appropriate and equitable considerations support the parent’s claim. School Committee of Burlington v Department of Education of Massachusetts, 471 U.S. 359 (1985), Florence County School District Four v Carter by Carter, 51.S.Ct. 7 (1993). Under the Individuals with Individuals with Education Act (IDEA) 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 is reasonably calculated to enable the student to receive educational benefits. Bd. of Ed. v Rowley, 458 U.S. 176, 206-07 (1982); Cerra v Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2005). While a school district is not required to “maximize” the student’s potential, it 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 v Florida Union Free Sch. Dist., 142 F.3d 119.
Turning to prong 1, the parents are not challenging the classification of the composition of the IEP team or the completeness of the evaluations available to it. Rather they argue that the program recommendation of an and related services was not appropriate to permit meaningful progress. Based on the testimony and documentary evidence in the record I find that the DOE has failed in its burden of proof as to its recommendation.
Carefully scrutinizing the IEP as is necessary since R.E.v NYC Dept. of Educ., 694 F.3d 167 (2d Cir. 2012), I note that the team
Finally as to the equities, these parents have cooperated in good faith with the CSE throughout the IEP process by promptly providing evaluations, attending the IEP meeting on March 22, 2012 and communicating their desires and objections to the CSE. It was not unreasonable for the parents to sign a contract on February 6 in order to reserve a seat at for the upcoming school year. (Exh. G). Certainly their willingness to consider a public school is clear as the student had attended for several years. Therefore on this record I find no equitable impediment under Burlington and Carter to bar the parents’ request for reimbursement.
THEREFORE IT IS ORDERED that upon proof of payment the DOE reimburse the parent for tuition at in the amount -2013 school year. Dated: September 24, 2013
_______________________
SUSAN LUSHING, ESQ.
Impartial Hearing Officer SL: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
PARENT
A Due Process Complaint, dated 3/14/13, 2 pages B update, dated 3/8/12, 16 pages C Final response to FNR, dated 3/23/12, 1 page D Letter from parent, dated 8/22/12, 2 pages E Letter from parent, dated 9/13/12, 2 pages F Affidavit of payment, dated 2/14/13, 1 page G Enrollment contract, dated 2/6/12,[2] pages H Attendance record, dated 6/13/13, 1 page I Class schedule,[1] page J Proof of payments, 3 pages K Mission statement, 3 pages L '11-'12 report card, 3 pages M '12-'13 Progress report, 21 pages
DEPARTMENT OF EDUCATION
Footnotes
[1] IEP, dated 3/22/12, 19 pages
[2] FNR, dated 3/22/12, 2 pages