NY IHO #2013-ih-962: New York City...

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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: May 23, 2013

June 3, 2013

July 8, 2013

July 31, 2013

September 12, 2013

October 8, 2013

Actual Rec Closed Date: October 31, 2013

Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2013

FOR THE DEPARTMENT

Attorney

FOR THE STUDENT

(via telephone) Attorney (via telephone) Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2013

FOR THE DEPARTMENT

Attorney

FOR THE STUDENT

(via telephone) Attorney (via telephone) Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2013

FOR THE DEPARTMENT

Attorney

FOR THE STUDENT

(via telephone) Attorney (via telephone) Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31 2013

FOR THE STUDENT

Attorney

FOR THE DEPARTMENT OF EDUCATION

DOE Counsel NAME AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2012

FOR THE STUDENT

Attorney

Legal Intern

Mother

FOR THE DEPARTMENT OF EDUCATION

Attorney (via telephone) (via telephone) Coinator

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2013

FOR THE STUDENT

Attorney

Parent (via telephone) of School (via telephone)

FOR THE DEPARTMENT

DOE Attorney

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 2012-13 school year. I held a pre hearing conference on May 23, 2013. after the end of the resolution session. The parties requested various subpoenas and I held a hearing on June 3, 2013. to address various objections.

The parent amended the complaint on June 5, 2013. This started the time lines again. I held another pre hearing conference on July 8, 2013 after the end of the resolution session. A hearing was scheduled for July 31, 2013. The District's witness was ill. The hearing was adjourned to September 12, 2013 for the purpose of completing the case. After a full of day of hearing we were not able to conclude and we adjourned for one final day of hearing. A hearing was held on October 8, 2013 and all witnesses had completed their testimony. Both parties requested an opportunity to write written closings because of the amount of testimony and issues that had been presented over the course of the hearing. I received written briefs by means of email on October 29, 213 and in the mail on 1 October 31, 2013 and the rec was closed.

The parties moved to extend the compliance date on various occasions in light of anticipated, testimony, availability of witnesses, for review of lengthy transcripts, and for an opportunity to write closing statements. 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 accance with the requirements of due process was greater than any delay in the resolution in this matter. Accingly, the joint request for extension of the compliance dates were granted.

A list of persons in attendance and evidence submitted are attached. The parents were represented by their attorneys The Department of Eduction (“DOE”) was represented by their attorney

BACKGROUND

is a old student who was in the school year.

PARENT'S POSITION

The parent maintains that the IEP is both substantively and procedurally flawed. They argue that could not receive the level of individualized attention that she requires. They argue that it does not have some of the programs she requires to transition postschool. In addition, they claim that 's mother, Ms. did not have opportunity to fully participate in the process because They maintain that the where attended was appropriate and able to accommodate 's needs. It is their position that prospective tuition should be awarded in its entirely.

DEPARTMENT'S POSITION

They maintain that the IEP was both procedurally and substantively appropriate. They argue that they had all the required members on the team including someone to translate for Ms. . They argue that they had all the necessary documents. They argue that any omissions or errors are harmless. They maintain that the goals are appropriate and specific. They argue that the school could have implemented the IEP as written. They also maintain that the parent never had intention of placing in a public school. It is their position that any tuition should be denied in its entirety.

FACTS

On June 5, 2012 the CSE met and developed an IEP for for the 2012-13 school year.

The meeting took place in the early morning and lasted approximately two and one half hours. (Tr. 417) It was a three year mandated CSE review.

FINDINGS OF FACT AND DECISION

It is well-established that a district may be required to pay for private educational services for a student with a , 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. Dept 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).

1 I have submitted each closing statement into evidence

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 have available to them a free and appropriate public education (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 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 , Appeal 5No. 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).

An IEP must contain: (1) the student's present levels of academic achievement and functional performance; (2) measurable annual goals for the child; (3) the method used to measure the student's progress toward those goals...” M.H. v. Ny.Y.C. Dept't of Educ, 685 F.3d 217, 245 (2d Cirl 2012) (citing 20 U.S.C. § 200.4(d)(2).

The SRO has held that an IEP is appropriate even when the goals are “poorly written and unclear in some respects” so long as the IEP addresses the Student's special education needs. Application of a Child with a . Appeal No. 12-108. Further, measurable annual goals are those “which provided a framework for further refinement by the classroom personnel responsible for overseeing the child's program,...written with requisite specificity to enable the child's teachers and petitioners to understand the [CSE}'s expectations with respect to teach annual goal and what the child would be working on over the course of the school year.” M>S. V N.Y. City Dep't of Educ. 583 F. Supp. 2D 498, 508 (S.D.N.Y. 2008).

An IEP team must conduct certain and consider all and reports provided to the team, and any other that they deem necessary. 20 USCS §1414(b)(2); 8 NYCRR §200.4(b)

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 , 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). 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 , Appeal No. 07-007.

The SRO and the Courts have ruled that the IDEA does not specify any particular level of educational benefit that must be provided by the recommended program. Rowley, 458 U.S. At 197 n.21; see also, Grim v Rhineback Cent. School Dist., 346 F.3d 377, 379 (2003); Walzak, 142 F.3d at 132. In other ws, the law only requires the District to provide an appropriate education,” not one that provides everything that might be thought desirable by loving parents” Tucker v. Bay Shore Union Free Sch. Dist, 873 F.2d 563, 567 (2d Cir. 1989). Therefore a District meets its obligation under IDEA if it provides “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. At 203.

The CSE has an obligation to involve petitioner meaningfully in the IEP development process. Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a , Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F. Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a , Appeal No. 02-015. This obligation includes providing the parents with written notification within five days prior to the meeting to ensure they have an opportunity to be included in the development of their child's IEP. NYCRR §200.5.(c)(1).

It is also undisputed that the IEP uses the wrong possessive, such as “his” or “his” rather than “her” in certain instances. There are typos and grammatical errors in the IEP, however, I agree with Ms. , that the content is there, and I find that none of these would rise to the level as to deny a FAPE to . I find that this is not a procedural error that would result in a denial of FAPE.

The team discussed the goals at the meeting which pertained to . There is no allegation that these were not what was incorporated into the IEP. The team discussed 's within a . I find no basis that the IEP was not based on 's individual needs.

The Parent argues that the failure to name a transition agency impeded 's right to a FAPE. Ms. opined that the DOE would be responsible for the coinated set of transition activities. She explained that an agency would only be listed by name on the transition plan if it was an agency outside of the DOE. (Tr. 141-142) There is no evidence that anyone disagreed with the transition plan as written during the meeting. I find that that the failure to name a transition agency did not deprive of a FAPE.

F.3d 96, 104-105 (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 , Appeal No. 02-111.

Plaintiff's burden is to show that the program was properly designed for to progress and is not required to show that in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

The SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a , Appeal No. 11-057 (SRO denied tuition because he private school did not provide adequate related services to meet the child's needs)

Courts consider the “totality of the circumstances” and parents “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F.3d at 364-65;

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 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 , Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”)

In this case the Department argues that Parent's witness Ms. could not identify how often or when received all of her related services. The for the 2012-13 school year indicate that was to received related services. The fact that Ms. did not know the specifics of 's services and scheduling does not mean she did not receive them. There was testimony from Ms. that does receive related services at , including

With respect to progress the Department argues that the evidence is unclear that made actual academic progress. Firstly, actual progress is not a requirement. In addition there was testimony as to the that was made.

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.

New York courts consider whether the parent has “failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE” and whither the parent attended IEP meetings and school vista, and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011).

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 , 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 argues that Ms. signed a contract with e prior to visiting the School. However, there is a clause in the contract that she would be released from said contract without financial penalty if she notifies e in writing on or before October 31. I find that that signing of the contract in this case is not evidence of bad faith.

In this case the parent attended the IEP meeting and visited the recommended school placement even after having difficulty setting up the appointment. There is no evidence that the parent did not cooperate on any occasion or withheld information from the Department. She filed a 10 day notice and advised the Department of her intentions. I find that there is nothing with respect to the equities that would bar the parent from relief.

The parent testified as to her finances. She submitted her tax returns (Exhibit AA) in support of her claim that she could not aff to front the cost of the tuition, $48,500. for the 2012-13 school year at e. I find that had Ms. prevailed, she would have been entitled to direct funding.

In conclusion I find that the DOE did offer a FAPE to for the 2012-13 school year. I find that the unilateral at e was appropriate and the equities support the parent. Based on my finding that the DOE met their burden under prong one and provided a FAPE the request for tuition is denied in its entirety. ER The request for tuition for the 2012-13 school year at e for is denied. Dated: November 18, 2013

____________________________

SHARYN FINKELSTEIN, ESQ.

Impartial Hearing Officer SF: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 REC

PARENT

A IEP for meeting held on June 5, 2012 June 5, 2012 19 pages B for May 22, 2009 2 pages C

for April 6, 2009 6 pages D IEP Annual Review Report for June 5, 2013 5 pages E for Hearing Education Services for June 5, 2009 2 pages F Notice of IEP meeting for May 30, 2012 5 pages for IEP meeting June 5, 2012 G Department of Education Request for additional for October 13, 2011 1 page H Notice to schedule Three year mandated for October 13, 2011 1 page I Document List for May 16, 2013 2 pages J Event Log for May 16, 2013 3 pages K Description of the School Program 4 pages L Report October 12, 2012 3 pages M for the

School 2011-12 1 page N 2012-13 8 pages

2 Identification only

for the 2012-13 school year T o for

May 2012 5 pages U May 7, 2012 1 page V

for May 14, 2012 1 page W Supplemental Security Income statements for and April 2, 2012 12 pages X Notice of subpoenas to June 4, 2013 2 pages Y Notice of Subpoena to June 4, 2013 2 pages Z Subpoena to the e

June 3, 2013 2 pages AA 2012 Tax Return for February 12, 2012 23 pages BB Office of Travel Training

Travel Training Description undated 2 pages CC Closing Statement October 29, 2013 19 pages

DEPARTMENT

1 Due Process Complaint April 1, 2013 5 pages 2 Due Process Response April 2, 2013 3 pages 3 IEP June 5, 2012 21 pages 4 IEP Meeting Minutes handwritten June 5, 2012 4 pages 5 IEP Meeting Minutes typed June 5, 2012 5 pages 6 e Transition Goals for May 29, 2012 6 pages 7 e Transition Goals for May 29, 2012 6 pages 8 May 4, 2012 8 pages 9 2011-12 March 2012 18 pages 10 December 12, 2013 1 page 11 FNR June 29, 2012 1 page 12 10 Day Rejection Notice August 24, 2012 1 page 13 Amended Due Process June 5, 2013 5 pages 14 Response to Amended Due Process Complaint July l1, 2011 3 pages 15 2012 Schedule 2012 1 page

16 September 7, 2012 4 pages 17 September 12, 2012 4 pages 18 November 2012 26 pages 19 March 2013 29 pages 20 June 2013 29 pages 21 Closing Statement October 29, 2013 25 pages

Footnotes

[2] O for the School 2011-12 21 pages P Description 5 pages Q 2012-13 1 page R regarding payment November 5, 2012 1 page S Contract June 28, 2012 2 pages

New York City Department of Education, Impartial Hearing Decision