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 16, 2013 (Pre-Hearing)
May 30, 2013
June 5, 2013
June 13, 2013
Actual Record Closed Date: June 20, 2013
Hearing Officer: Sharyn Finkelstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2013
Attorney — Student
For the Department — Student
District Representative — Student
NAMES AND TITLES OF PESONS WHO APPEARED ON JUNE 5, 2013
Attorney — Student
Attorney — Student
Parents
(via telephone) Co-Director — Student
(via telephone) Teacher — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013
Attorney — Student
Parents
Attorney (observing) — Student
District Representative — DOE
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of ”) for the 2012-2013 school year. I held a pre hearing conference on May 16, 2013 after the end of the resolution session. Hearings began on May 30, 2013 and were concluded on June 5, 3013. The parent and the District requested several adjournments and extensions of the time line. In considering the request 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 in this matter. Accordingly, the request for extension of the compliance date was granted.
A list of persons in attendance at the hearings and evidence submitted on the various dates are appended to the decision.
BACKGROUND
is a student classified with a . On March 16, 2012 an IEP meeting was held. The team recommended a ) Placement and ”) (Exhibit B) A final notice of recommendation was sent to the parents recommended a class at . (Exhibit 2)The parents visited the proposed placement and sent a letter detailing their concerns with the placement to the CSE. They placed at the where she had attended for several prior years and provided the DOE with a ten day notice. (Exhibit I) The parents brought this hearing to obtain tuition reimbursement for 2012-13 school year where attended for .
The Department was represented by Ms. on one occasion and by Ms. . The Department conceded prong one. (Tr. 10) They maintain that is not appropriate because among other reasons has not access to typically developing peers. They also argue that the equities do not favor the parents because of the timing of s enrollment. It is their position that tuition should be denied in its entirety. (Tr. 10)
is the co-director of the middle school at . They are a full time special education school for children with . (Tr. 25-26) There are students in the school housed in buildings. per cent of the students have IEPs. (Tr. 34) The age range is . The typical class size in the middle school is students and teachers. Students are grouped in homerooms based on a variety of social dynamics within the group. Literacy and math are taught in small groups ranging in size from children. (Tr. 21-24) They have extensive professional development at the school. (Tr. 26) which all the teachers are required to attend. (Tr. 27)
The students are grouped for literacy and math from a lengthy process. If a student is either significantly falling behind or excelling beyond the other members of the group they have the ability to switch the group. (Tr. 26) Teachers use a variety of resources in establishing the curriculum. (Tr. 29)
is in his class. (Tr. 38) He teaches the class with Ms. . All of the teachers are supervised independently once a week and in addition there are two faculty meetings.(Tr. 31) There is professional development and collaboration with the teachers. (Tr. 31)
has a consult, an consult and there is also a school psychologist available as needed. (Tr. 32) The consult makes sure that the classroom supports s needs. (Tr. 33) She has a . (Tr. 38) Each week there are times when the join one of the key content area classes and that would provide three teachers in the room to work with student primarily on concepts. (Tr. 38)
has remained in the same group for literacy and for math throughout the 2012-13 school year. (Tr. 35)
is a teacher at . She is the head teacher in the homeroom class. (Tr. 42) They have homeroom every morning and every afternoon for arrival and for pack up. In addition they have two forty minute class a week just homeroom and a third forty minute class that is study hall with the homeroom group. (Tr 43-44) She has a co-teacher as well as a supervisor. (Tr. 44) who she meets with weekly.
is a student in her homeroom class. There are students. has strengths mostly in the areas of . She is good at . She does well with . She is . (Tr. 46) She has difficulties in the areas of . (Tr. 47) This impacts her performance in all classes. (Tr. 47)
She is also 's history teacher. There are students in the class. (Tr. 48) In her literacy and math class there are students including . (Tr. 48) She meets with 's other teachers to discuss progress. (Tr. 48)
They conduct standardized testing at the end of every year. She has a hard time with . She doesn't have and it is . She has some . (Tr. 51) At the start of the year she was . (Tr. 52)
She described the benefits of a small class. The content is tailored specifically to the student. is in a group with students who have the same struggles. They are working intensively . There is a tremendous amount of attention. (Tr. 53-54)
They practice a lot of and the teacher used learning. They did a lot of . (Tr. 54) They practiced a lot of conferencing. They spent a lot of time , (Tr. 55) was taught a lot of . (Tr. 56) All the materials given to are teacher generated. (Tr. 56) All the are created by the teacher. (tr. 57) She receives with . (Tr. 57) 's greatest area of progress has been in . She effectively uses an as a planning tool. She has learned to use which help her . She has made progress in her . (Tr. 58) She is able to to put in her where she at the beginning of the year. (Tr. 59) There is a much with which are answered correctly. (Tr. 59) She was working on at a level and now at the end of the year with the level text she is able to and of that story. (Tr. 60)
In she struggles with what means. At the beginning of the year she was working on a which is with other students on the same level. The class is at a reduced pace. She requires to .
She opined that the benefits of a small group is that they move at a uniform pace. can get assistance when she requires it.
uses a computer program which she can use at home to reinforce her . (Tr. 67)
Her struggle with are worked on in by providing her with some . (Tr. 68) They instructed her to use the which is a . (Tr. 69) Students use it to . (Tr. 69)
She opined that made progress in . (Tr. 70) She was dramatically behind in the beginning of the year with and at the end of the year she was able to do and early level . (Tr. 70) Her current level is . (Tr. 71)
She is one of 's history teachers. (Tr. 72) They have two teachers and the push in . (Tr. 74) She explained that benefits from the second teacher. (Tr. 74) She benefit from s used with . (Tr. 76)
has been able to move through the curriculum in both . (Tr. 77) She has made progress particularly in her willingness to and to the second teacher. (Tr. 78
She opined that has been appropriate because of the size of the classes, 's access to teachers, the opportunities to ask questions, the modification of curriculum, and the use of supports, (Tr, 79) She is able to and without being overwhelmed. (tr. 80)
receives h from the for minutes. (Tr. 80) They work on and she is “ ” making progress in . (Tr. 81) There is an increase in her . (Tr. 982) She was aware of the progress because she spoke with 's providers. (Tr. 85)
MR. is 's adoptive father. He described her as , and if she does not understand something. She has weakness in her cognitive abilities. She has difficulty . He described her more of a than . (Tr. 98)
had attended a class but did not do very well. (Tr. 99)
He attended the IEP meeting in March. He voiced his dissent when the team determined that she no longer need the . They recommended an class. The concern was that she would get lost in that class. He expressed his concerns in a letter to the CSE but they did not respond.
He opined that is doing great at . He described her as student. He has seen academic progress. Her has improved. She is doing well and has really good friends. She has issues and he is receiving good feedback from the school. (Tr. 103) The school is available for her on an individual basis, (Tr. 104) He attributed her progress to the small class and the modified curriculum.
He meets with the teachers three times a year. He opined that is appropriately meeting 's needs. (Tr. 104)
He signed a contract sometime in February. (Exhibit F) He was obligated to put a deposit of $8,000 but if an appropriate placement from the DOE was given he would not be responsible for the balance. (Tr. 105) He explained that he would have considered a public school option. The total cost for for the 2012-13 school year is $49,177. They paid the tuition in full. (Tr. 106)
FINDINGS AND CONCLUSIONS
It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).
One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B). In this official interpretation of the regulations, the U.S. Department of Education explains that the special education teacher member “should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher who is, or may be responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child” (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26)
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21 (citing 8 NYCRR 200,r[d][2]iii]) Each annual goal should include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. Id at 21; 8 NYCRR 200.4[d][2][iii][b]). For a student who takes a New York State alternate assessment, the IEP shall also include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student's present level of performance and the measurable annual goal. 8 NYCRR 200.4[d][2][iv]; Application for the Review of a Determination of a Hearing Officer Appeal No 11-037.
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted)
The parents must show that the educational program met Joseph's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111. Plaintiff's burden is to show that the program was properly designed for Joseph to progress and is not required to show that Joseph in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”).
The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.
Tuition reimbursement may be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement and their intention 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 of such information ten business days before such removal. 20 U.S.C. See,1412[a]]10][C](iii)[l]: Application of the Board of Education, Appeal No. 08-084. The ten day notice should adequately inform the school district of the parent's objections to the IEP. See Wood v. Kingston City School District, 55 IDELR 132 (U.S.D.C.N.D.N.Y.2010) The purpose of the statue is to give the CSE an opportunity to reconsider its recommendation and to correct any alleged deficiencies in the IEP. Application of a Child with a Disability, 03-062.
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FREE Appropriate Public Education (“FAPE”) Bettinger V. New York City Board of Education. 2007WL. 4208560 [S.D.N.Y. Nov. 20, 2007]
The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1
(D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting).
In this case the Department conceded prong one.
With respect to Prong 2 there was undisputed testimony from all of parent's witnesses that she has made progress. provides a small class setting with smaller group instruction in literacy and math. They provide her with all mandated related services. I find that has made progress not only academically but socially. I find that the parents unilateral placement at is appropriate.
With respect to prong 3 the parents have cooperated throughout the whole process. They informed the CSE of their concerns and in contrast the CSE never responded to their concerns. Mr. explained that there was an escape clause in the contract and testified that they would have sent to a public school if it had been appropriate. I have no reason to discredit his testimony. I find that the equities favor the parents.
In summary the District conceded prong one, the parents met their burden under prong two and nothing would bar the parents from relief.
ORDER
The Department shall reimburse the parents for tuition paid to the for the 201213 school year for upon receipt of contract and evidence of payment. Dated: July 1, 2013
SHARYN FINKELSTEIN, ESQ.
Impartial Hearing Officer SF: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 RECORD
PARENT
A Impartial Hearing Request March 19, 2013 3 pages
B IEP March 16, 2012 11 pages C Rejection Letter September 18, 2012 3 pages
D Class Schedule 2012-13 1 page
E Attendance Record September/12-March2013 1 page
F Enrollment Contract
February 13, 2012 1 page
G Affidavit of Payment January 31, 2013 1 page
H Proof of Payment February 12-October 12 3 pages
I 10 Day Notice August 22, 2012 2 pages
J First Trimester Report March 16, 2013 7 pages
K Second Trimester Report April 5, 2013 2 pages
DEPARTMENT OF EDUCATION
1 Due Process Response October 18, 2012 4 pages
2 Final Notice of Recommendation August 7, 2012 1 page
Footnotes
[1] The parents were represented by their attorney Ms. from the law offices of . They maintain that is appropriate and has enabled to make progress. They argue that 1Ms. from the law offices of appeared for observation purposes the parents have always cooperated with the CSE and that the equities are in their favor. It is their position that tuition should be granted in its entirety.