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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 3, 2013
June 7, 2013
June 17, 2013
June 19, 2013
July 29, 2013
Actual Rec Closed Date: August 27, 2013
Hearing Officer: Jeanne Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2013
REGINA SCHAFFER-GOLDMAN, Attorney, (Via Telephone) — Student
Children (Via Telephone) — Student
Representative, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 7, 2013
REGINA SCHAFFER-GOLDMAN, Attorney — Student
LILLIANA DIAZ-PEDROSA, Attorney — Student
Mother — Student
MATT KELSEY, Intern — Student
CARLOS CASTRO, Interpreter — Student
JOHN KARL ALVIN, Attorney — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2013
REGINA SCHAFFER-GOLDMAN, Attorney — Student
LILLIANA DIAZ-PEDROSA, Attorney — Student
(Via Telephone) — Parents
Teacher (Via Telephone) — Parents
IKLA AZCONA, Interpreter — Parents
JOHN KARL ALVIN, Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2013
REGINA SCHAFFER-GOLDMAN, Attorney — Student
LILLIANA DIAZ-PEDROSA, Attorney — Student
Mother — Student
SONNY AMAYA, Interpreter — Student
JOHN KARL ALVIN, Attorney — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 29, 2013
REGINA SCHAFFER-GOLDMAN, Attorney — Student
LILLIANA DIAZ-PEDROSA, Attorney — Student
JONATHAN FRODELLA, Attorney/Observer — Student
Parents
(Via Telephone) — Parents
CRISMAILEN GUZMAN, Interpreter — Parents
JOHN KARL ALVIN, Attorney — DOE
INTRODUCTION
On April 10, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the
BACKGROUND
is a year old student who has been unilaterally placed by her Parent at the The student has attended for two years, entering at the beginning of for the 2012-13. (t. 187) The student is classified as having an . This classification is not in dispute. On June 5, 2012 a meeting was held to develop an individualized education program (“IEP”) for for the 2012-13 school year. (t. 73) An IEP (Ex. 1) was developed which recommended a in a ized school, year as well as
A Final Notice of Recommendation (“FNR”) dated June 27, 2013 (Ex. 9) was sent to the Parent. The FNR recommended The Parent asserts, in the due process complaint (Ex. 10) that the IEP is procedurally and substantively deficient, that it refers to another student . In addition, that the recommended placement was inappropriate. The Department of Education (DOE) maintains that the student was provided with FAPE for the 2012-13 school year.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An IEP meeting was held on June 5, 2013 to develop an IEP for the 2012-13 school year for served as the district representative and school In addition she did a school observation of the student (Ex. 5). Ms. stated that the IEP was developed at the time of the meeting and that they do not use any type of boiler plate when creating an
IEP. (t. 72-74) She testified that she typed the IEP during the course of the meeting while the team was discussing . (t. 119) In developing the IEP Ms. reviewed the Report (Ex. 4), as well as the previous IEP. (t. 75) Also reviewed was (Ex. 6) and written transition goals for (Ex. 2) prepared by of . (t. 78-80) attended the IEP meeting as well as teacher (via telephone) (t. 94-95, 190-91)
has who also attends and her IEP meeting was held the same day. (t. 95-97, 193-94) Ms. attended both IEP meetings and she typed both and IEP’s. Ms. acknowledged that ’s IEP uses name at various points throughout her IEP and states that it was a clerical error and that the goals are ’s and notes that transition goals (Ex. 2 & 3) developed by are very similar and any differences are minor. (t. 97-99 ) Ms. testified that while similar the differences are in needs, goals and activities. Ms. specifically points to the fact that and notes that it was not included because at the time was and ’s goals focused on a more basic level of . (t. 192-93, 257-58) , Assistant Head of School testified that and have different learning needs and that at higher level in ELA and “ ” as well as their being different. (t. 405)
Ms. concedes that there are some grammatical errors in the IEP but does not believe it would impede a teacher from implementing the IEP. She stated that she did not see any errors but attributed that to the fact that she had done approximately 150 IEP’s in a short time. (t.133-34) In addition to grammatical errors, Ms. conceded that a goal lacked a percentage to measure the annual goal, the agency responsible for transition activities and refers to the opposed to the Ms. again refers to these as clerical errors and notes that she was not trained to be a typist. She does not believe that these errors will have an impact on implementation. (t. 157-62) The IEP team recommended a program at a ized school, and . (t. 101-06, 189-90) (Ex. 1) ) Ms. stated that the Parent participated in the creation of the IEP and that the only person who disagreed with the recommendation was Ms. and that was because she felt a ratio would better meet the students needs as well as a balanced program to meet . (t. 111-15)
The Parent received an FNR dated 6/27/12 (Ex. 9) for . The Parent testified that the FNR had a phone number on it and she tried to call to make an appointment but it was always answered by a machine and it was . She asked Ms. to help her get an appointment and she did. (t. 425) In early October 2012 The Parent visited the recommended placement with Ms. . They were given a tour of the school by Ms. , the parent coinator and had an opportunity to speak to one of the classroom teachers. They were given program information for the class recommended for . There were 3 classrooms that were identified as likely classes for . (t. 194-95, 431-32) Ms. did not believe that was appropriate for for a variety of reasons ranging from a l (t. 198-208)
On June 28, 2012 the Parent signed and enrollment contract with . (Ex. GG) The Parent acknowledged that she is responsible for the paent of the tuition and that she cannot aff to pay it. (t. 443-445)
On August 24, 2012 the Parent advised the DOE, in a letter written by her attorney of that she had not received an FNR and was continuing at . (Ex. TT)
. is also in her travel training class and Ms. has taught her since October 2011. was moved in to her classroom the prior year because they found that the original class was not meeting her needs. (t. 246-47, 251) )
The Individuals with Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with have available to them a free and appropriate public education (FAPE) (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 FAPE includes education and related services designed to meet the 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 FAPE for the 2012-13 school year based on the failure of the DOE to create a procedurally and substantively sound IEP or to offer an appropriate placement.
The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE 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 FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE 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). FAPE 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). It was clear through the testimony of the IEP witness and the evidence adduced at the hearing that the IEP was replete with errors. The DOE would like to minimize the errors as merely clerical but I do not credit that position. The Parents assertion that the IEP is sloppy and incomplete is an apt characterization. The very fact that the IEP names the student’s sister upwards of 72 times makes Ms. ’s testimony that they do not use boilerplate incredible. The , and the names are similar and the IEP’s were done on the same day does not excuse the errors. At a minimum it gives the appearance that the IEP was not individualized for this particular student and that the IEP was simply cut and pasted together from her sister’s IEP. While some of the other errors alone might not rise to a level of deprivation of FAPE cumulatively they do. The DOE’s position that any errors would not effect the implementation of the IEP because the teacher would know what and who they meant are speculative and the type of action that the court found impermissible in RE v. New York City Department of Education 694 F. 3d 167 (2012)
The DOE offered no direct testimony about the actual recommended placement which was offered to the student or that said placement would be able to implement the IEP.
It is incumbent on the school district to identify a school which is capable of implementing the IEP. TY v. NYC DOE, 584 F.3d 412 (2d Cir. 2009) The DOE takes the position that they do not have to present the testimony of a placement witness because the speculative allegations of the Parent do not warrant such a witness. The DOE relies on R.E. v. New York City Department of Education, 694 F.3d 167 (2012) The case at hand is distinguishable as this is not a case where an attempt is made to rehabilitate a defective IEP with retrospective testimony of what the recommended placement would have been able to do to cure those deficiencies. The court in RE also notes that a claim that the IEP would not be able to be effectively implemented cannot be supported by speculative evidence that the District will not adhere to the IEP. In the instant case the Parent raises issues concerning the recommended program. There is nothing in RE which relieves the DOE of the responsibility to show that the placement offered would be able to effectively implement the IEP. If that were the case, taken to its logical conclusion, a school district could load up an IEP with all sorts of services and accommodations and never have to show that they were able to actually provide an appropriate placement. The question at issue is whether the student was provided with FAPE and testimony and/or evidence regarding the recommended placement is an integral part of making that determination.
I find that the DOE failure to provide an appropriate placement for is a denial of FAPE.
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 education needs. I found the testimony of the Parent and the teacher and administrators from credible. The testimony supported the Parents position that the student is The testimony supports a finding that the school has crafted an individualized program that meets the . 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 FAPE…or meet state education standards” and it need not “furnish every 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 Parent cooperated fully with the IEP process. The Parent attended the IEP meeting and visited the recommended placement. While it is unclear when she received the FNR, I credit her testimony that she tried to contact the recommended placement but only got an answering machine in speaking) and finally reached out to a employee to assist her in making an appointment to view the school. While the Parent signed an enrollment contract with on 6/28/12 that contract releases the Parent from financial penalty if she chooses a DOE placement prior to October 31, 2012. I find the Parent credible and that the Parent fully complied with the Committee on Education (CSE). In view of the foregoing I find the equities favor the position of the Parent. ER Therefore, it is hereby ered that the Department of Education shall provide retroactive, direct paent of the tuition at for the 2012-13 school year in the amount of $48,500 and provide education transportation. Dated: September 6, 2013
__________________
JEANNE 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 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
A. Omitted-duplicate Parent
B. Not entered Parent
C. IEP, dated 6/5/13, 21 pages Parent
D. IEP, dated 4/29/11, 12 pages Parent
E. Omitted-duplicate Parent
F.
dated 3/21/12, 6 pages Parent
G. Omitted-duplicate Parent
H. Omitted-duplicate Parent
I. , dated 2/16/10, 1 page Parent
J. Not entered Parent
K. Omitted-duplicate Parent
L. IEP Annual Review Report, dated 6/5/12, 5 pages Parent
M. Omitted-duplicate Parent
N. Omitted-duplicate Parent
O. not entered Parent
P. Omitted-duplicate Parent
Q. Omitted Parent
R. Notice of IEP meeting, dated 5/30/13 (for 6/5/13 IEP
Meeting), 5 pages Parent
S.
dated 6/25/12,[7] pages Parent
T. , dated 6/25/12
X. Omitted Parent
Y. Description of the School Programs, undated,
4 pages Parent
Z. FNR Placement Site Report dated 10/12/12, 3 pages Parent
AA. Omitted Parent
BB. Education Service Delivery Report 2011-12 for the School,[1] page Parent
CC. not entered Parent
DD. not entered Parent
EE. Description, undated
5 pages Parent
FF. Schedule for 2012-13
12 pages Parent
SS. New York State Approval for Assistance, dated 4/16/10, 1 page Parent
TT. 10 Day Notice, dated 8/24/12, 1 page Parent
UU. Omitted-duplicate Parent
VV. Omitted-duplicate Parent
WW. Notice of Subpoena , dated 5/14/13,
3 pages Parent
XX. Notice of Subpoena to , dated 5/14/13,
2 pages Parent
YY. Subpoena to , dated 5/23/13, 2 pages Parent
ZZ. Income Tax Return 2012, 23 pages Parent
1. Individualized Education Program, dated 6/5/12, 19 pages District
2. Submitted dated
5/29/12, 6 pages District
3. , dated
5/29/12, 6 pages District
4. , dated
3/21/12, 7 pages District
5. , 12/14/11, 1 page District
6. Report, 6/12, 24 pages District
7. 10/3/11,
2 pages District
8. CSE Review Minutes, undated, 5 pages District
9. Final Notice of Recommendation, 6/27/12, 1 page District
10. Due Process Complaint, dated 4/1/13, 5 pages District
11. Due Process Response, dated 4/9/13, 3 pages District
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page
II. Closing Brief For The Department of Education, undated, 16 pages
III. Closing Brief For Parent , dated 8/26/13, 17 pages
Footnotes
[7] pages Parent U. DOE request for , dated 10/12/11 1 page Parent V. Notice to schedule three year dated 10/7/11, 1 page Parent W. Omitted Parent
[1] page Parent GG. Contract 2012-13 Year, dated 6/28/12, 2 pages Parent HH. re: paent, dated 11/5/12 1 page Parent II. Report, 3/13, 28 pages Parent JJ. , dated 11/12, 21 pages Parent KK. Omitted-duplicate Parent LL. , dated 5/12, 5 pages Parent MM. dated 5/8/12, 1 page Parent NN. , dated 5/16/12, 1 page Parent OO. , dated 5/12, 5 pages Parent PP. dated 5/7/12 Parent QQ. dated 5/14/12, 1 page Parent RR. Supplemental Security Income statements, dated 4/2/12