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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 2, 2013
July 22, 2013
Actual Record Closed Date: October 15, 2013
Hearing Officer: Jean M. Lucasey, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 2, 2013
Attorney — Student
Attorney — Student
Mother — Student
Attorney — DOE
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 22, 2013
Attorney — Student
Attorney — Student
Mother — Student
Teacher (via telephone) — Student
(via telephone) — Student
(via telephone) — Student
Attorney — DOE
Attorney — DOE
PROCEDURAL HISTORY
A hearing on this matter was requested on April 16, 2013, by . (“Parent”), as parent of pursuant to the Individuals with Education Improvement Act § 1415 (f) and 8NYCRR §200.5(i) to procure retroactive direct funding for the unilateral placement of her daughter at the (“”) for the 2012-2013 school year and for compensatory services for the 2011-2012 school year.
I was appointed as hearing officer in this matter on April 17, 2013. The resolution period ended on May 3, 2013, making June 17, 2013, the original decision due date. On May 16, 2013, the parties jointly moved for an extension of the timeline for witne availability, and as the request was the first by either party and as the child was in school and receiving services, I granted the extension, making July 17, 2013, the decision-due date. (Ex. i.) The parties agreed to meet for hearing on June 13 and 14, but on June 11, 2013, the Department of Education (DOE) moved to adjourn the hearing dates for witne availability and to extend the timeline for the same reason. Parent’s counsel objected to the requested adjournment and to the motion to extend the timeline, so on June 11, 2013, I denied the motion to extend and granted the adjournment request, and the parties rescheduled the hearing for July 2, 2013.
On June 28, 2013, counsel for the DOE filed a Motion to Dismi Parent’s claims regarding the 2010-2011, 2011-2012 and 2012-2013 school years, charging that the complaint was time-barred. (Ex. ii.) As June 28 was a Friday and the first day of hearing was scheduled for the following Tuesday, I agreed to discu the motion at hearing on July 2.
The parties met for the first day of hearing as scheduled on July 2, 2013. The hearing opened with the promised discuion of the Motion to Dismi, when DOE counsel withdrew her motion with respect to the 2011-2012 and 2012-2013 school years, (Tr. 9), leaving the 2010-2011 school year the subject of the Motion. (Tr. 9-10.) Parent’s counsel requested an opportunity to research the matter and to submit a written response to the motion, and the parties agreed that any response from Mr. would be due by July 9, 2013.[1] (Tr. 11-12.) During the identification of the parties’ documentary evidence, the DOE conceded Prong I of the case, (Tr. 25), specifying that the conceion applied to the 20112012 and 2012-2013 school years only, (Tr. 37), and explaining that it planned to call no witnees, (Tr. 58). Ms. moved to dismi that portion of the Complaint seeking a two-year extension of eligibility for Individuals with Education Act (IDEA) services, arguing that such award was beyond the power of an Impartial Hearing Officer (IHO) to grant. (Tr. 6365.) As the request involved a complex legal question, however, I invited the parties to make legal arguments on that point at the end of the proceedings. (Tr. 65-66, 68.) The parties adjourned for the day and scheduled additional hearing dates for July 12 and July 22, 2013.
On July 8, 2013, Parent moved to adjourn the July 12 hearing date and to extend the timeline for availability of witnees. I granted both requests, making August 16, 2013, the new decision-due date. (Ex. iii.)
The parties met as scheduled for the second and final day of hearing on July 22,
2013. As Parent decided not to defend her claims for the 2010-2011 school year, I dismied them on the record as time-barred in accord with the DOE’s arguments in its Motion to Dismi. (Tr. 77.) , at , testified for Parent in person; , licensed with , submitted to cro-examination via telephone; as did , teacher. After Parent testified in person on her own behalf, Parent’s counsel rested her case. As the DOE sought a chance to present two witnees at a later date because we ran out of time at the hearing, (Tr. 368, 370), the parties scheduled August 6, 2013, as an additional hearing date.
On July 31, 2013, Ms. notified Parent and the undersigned that the DOE had decided not to call witnees, and Mr. moved to adjourn the August 6, 2013, hearing date and for a briefing schedule to be ordered. I ordered written closing arguments to be submitted by August 23, and Parent moved to extend the timeline for a chance to write closing arguments and for time for the hearing officer to consider them in rendering her decision; the DOE did not object. I granted Parent’s motion on August 15, 2013, making September 16, 2013, the new decision-due date. (Ex. iv.) On September 13, 2013, Parent moved to further extend the timeline for 14 days to allow for thorough review of the transcripts and extensive documentary evidence, and DOE did not object. I granted the motion, making September 30, 2013, the decision-due date. (Ex. v.) After review of the parties’ post-hearing briefs, I invited the Parent to write a short reply brief in response to the DOE’s argument regarding the 2011-2012 school year, and Parent moved, through her attorney, to extend the timeline for 21 days for time to submit a reply. I granted the motion, making October 21, 2013, the decision-due date. (Ex. vi.) After receipt of the hearing transcripts and review of the parties’ post-hearing briefs and Parent’s Reply Brief, I notified the parties and formally closed the record on October 15, 2013.
FINDINGS OF FACT
was diagnosed with ”) when she was about years old. (Tr. 312.) She was by the and was placed at for where she received (Tr. 314.) When was about years old, the DOE placed her at the of the (“”), an approved non-public school, where she was enrolled in a small cla for students and received , and where she attended through July 2010. (Tr. 316-19.)
In March 2010, the DOE convened a committee on education (“CSE”) to develop an IEP for for the 2010-2011 school year. (Tr. 320-321.) The resulting IEP recommended as the placement for for the 2010-2011 school year. Before the end of the 2009-2010 school year, however, mother heard that was changing location, meaning that would have to than location. Parent testified at hearing that her daughter would be unable to travel to ’s new location because she was not per her March 4, 2010 IEP. (Ex. 9-1; Tr. 317-18.) Parent also learned that would be aging out of ’s program and would need a new placement, (Tr. 318), so she contacted to see if it could recommend another school or program for her daughter, but she does not recall whom she spoke to there, (Tr. 322). Parent also testified that she contacted the Committee on Education (“CSE”) to see whether it could recommend a placement similar to for . (Tr. 322.) I note that Parent did not provide documentation of such alleged contact with the CSE and that she did not testify as to how she contacted the CSE, when she contacted the CSE, or to whom she may have directed her request. It is undisputed that the DOE did not make a placement recommendation for other than for the 2010-2011 school year.2 (Tr. 322.)
For reasons that are unclear from the record, stopped attending after July 30, 2010, and the school formally discharged her on September 20, 2010. (Ex. 25-1.) The discharge form noted that the parent would not send the student back to , and that Parent was seeking another placement. (Ibid.) Parent sought placement for at in the 2010-2011 school year, (Ex. 24; Tr. 130, 346); extended an offer of placement, (Tr. 150; 346); but Parent did not execute the agreement so did not attend there that year, (Tr. 150, 347.) It is undisputed that received no formal schooling for the 2010-2011 school year. (Tr. 322.)
attended from November of 2002 through July of 2010, and Parent attended CSE meetings annually during that span of years. (Tr. 342-43.) Upon croexamination, Parent admitted that she was familiar with the IEP proce, that she had received copies of her due proce rights seven or eight times over the years and that she knew what her rights were “to some extent.” (Tr. 343.)
The 2011-2012 School Year
According to Parent, she contacted the DOE to obtain a placement for the 20112012 school year, but she was told that she had to have new completed first. (Tr. 323.) Parent testified that she completed documents to obtain those in November of 2011, (Tr. 323-25), but that they were not conducted until February 2012, an IEP meeting was not held for for the 2011-2012 school year, and the DOE did not offer a placement for 2011- 2012. (Tr. 323-325, 340.) In fact, contrary to her testimony, Parent submitted a Parent Request for to the CSE on January 4, 2012, not in November of 2011. (Ex. 15.) In the
As noted above, Parent’s claims regarding the 2010-2011 were dismissed at hearing as time-barred.
section of the request form that asks, “Was your child receiving Education Services before?” Parent wrote “yes.” (Ex. 15.) In the section of the form headed “Reason(s)” for referral, Parent wrote, “[] aged out of [] I have not been able to find appropriate placement . I am requesting new .” In the section of the form requesting the name of the student’s school, Parent wrote “ School.” (Ibid.) The Parent Request for form contains no further information about Parent’s motivation for seeking new .
Parent testified that, while she waited for three months for the to be completed, she became concerned that her daughter had not attended school for and was ely concerned because she “might be in of []”[3] because “she was not having formal education.” (Tr. 323-326.) On February 3, 2012, the Parent went to the office of to obtain information and apply for instruction for . (Ex. 3; Tr. 326-27.) Parent testified at hearing that someone in the office at the told her that the were the “same thing,” but she was unable to identify the person by name, referring to her only as “the . (Tr. 32627.) For the remaining portion of the 2011-2012 school year and the first semester of the 2012-2013 school year, received . (Ex. 30; Tr. 328.) As the Parent had no training in the education of students and found it very difficult to teach , (Tr. 327-328), she hired a ” to come in for two with her.”[4] No further information was offered regarding the in general or as a teacher of children in particular. Invoices itemizing the educational instruction services of the tutor, , indicate that Ms. paid Ms. for seions delivered two 5 from October 5, 2010, through August 28, 2012. (See Exhs. 30-1 through 30-37.)
I must note the remarkable fact that all of the invoices, which carry sequential invoice numbers,[6] are dated just one day after the last date of service and are stamped “paid” on the very same day as the invoice date. For example, the first invoice of the exhibit, Invoice No. 2010-01 indicates the last service date was 10/12/10, carries the invoice date of 10/13/10, and includes a “paid” stamp also dated 10/13/10 and initialed “.” (Ex. 30-1.) Of the 37 invoices in evidence, the sole exception to the striking pattern of super-efficient billing and immediate payments is Invoice No. 2012-102, which is dated 1/31/2012 for services delivered on 1/31/12 and marked paid on 1/31/2012 and initialed “,” indicating that the tutor billed Parent on the last service date, instead of one day later per the established pattern, and that in keeping with her habit of paying invoices immediately upon receipt, Parent paid the invoice on 1/31/2012. (Ex. 30-24.) The invoices, disclosed by Parent and submitted by the DOE collectively as Exhibit 30, were offered by the DOE’s attorneys as part of their equities argument. (Tr. 77-78.) Parent’s counsel objected to their admiion into the record at hearing, (Tr. 76, 86), but I admitted them in support of the DOE’s equities argument over his objection, (Tr. 86-87). From the suspect uniformity of the invoices, the undersigned concludes that the invoices are not entirely accurate. Without the benefit of testimony or other evidence to explain the remarkable pattern of nearly instantaneous billing and payment for services rendered only the day before, I do not conclude that services were not rendered, or even that Parent did not pay for them, but rather that all the invoices were likely generated at the same time and their dates fabricated to reflect the two-year period in question for reasons beyond the scope of this hearing as Parent makes no claim for reimbursement of any of the services. The invoices do serve, however, to cast doubt on the credibility of Parent’s case as it relates to the frequency and dates of the services, and more importantly, to undermine her equities argument as it relates to the 2011-2012 school year.
The 2012-2013 School Year
For the 2012-2013 school year, the DOE held several IEP meetings for . (Ex E; Tr. 328.) It held its first meeting in June 2012, where the Parent requested that be placed in a school similar to , (Tr. 329), but the DOE failed to make a recommendation as a result of the meeting. Instead, Parent testified that she was told she had to attend another IEP meeting because “those who did the June IEP meeting were on summer vacation and whatever paperwork required wasn’t [done]” and they needed to meet again to develop an IEP and program for for the 2012-2013 school year. (Tr. 330.) Accordingly, the IEP team met in again in August 2012 when Parent repeated her request for a program similar to . (Tr. 330.)
In September 2012, when Parent had received no placement for for the 20122013 school year, she filed a hearing request pro se. (Ex. Y.) After she filed the hearing request, the CSE reconvened and made a placement recommendation for .[7] (Ex. V, W.)
Parent testified that she received a final notice of recommendation in October 2012 for P070m at the (“”). (Ex. V; Tr. 335-36.) Parent visited the placement and found it inappropriate for her daughter, charging that was unaware that the DOE had made a placement recommendation for there. Further, Parent was concerned that would not be at because students there appeared to be when she visited, and she was diatisfied with the clarooms there. (Tr. 337.)
Accordingly, Parent informed the DOE’s placement officer that was not appropriate for . (Ibid.) In November 2012, the DOE sent an additional placement offer letter to Parent for P226 at (“”). (Ex. W; Tr. 338.) Parent visited , and she testified that she was told by the school that it did not have an available spot for her daughter. (Tr. 339.) What’s more, Parent found was inappropriate because the there were held in the , and she believed that would not benefit in that setting. (Tr. 339.)
Parent received no further placement offers. She wrote a letter to the DOE on November 24, 2012, stating that, absent an appropriate recommendation, she would be sending to the School for the 2012-2013 school year and that she would seek tuition funding from the DOE for the placement. (Ex. X.)
The School
Parent signed an enrollment contract with the School on November 29, 2012, for to attend there from December 10, 2012, through June 21, 2013, at a cost of $56,992.00. (Ex. BB1.) In December 2012, began attending the School. (Tr. 99.) At , she was placed in a small cla with instructors. (Tr. 1010, Ex. MM.) received . (Exs. GG, MM, NN, OO.) (GG-8),
Parent cooperated with the DOE throughout the IEP proce for the 2012-2013 school year. Parent attended every IEP meeting for during the 2012-2013 school year. (Tr. 340.) Parent visited and considered both of the placements that the DOE recommended, and she explained why they were inappropriate for her daughter. (Tr. 337339). Finally, Parent wrote the DOE a ten-day notice letter indicating that she would be sending to and that she would seek public funding for the placement. (Ex. X). Accordingly, I FIND that nothing in Parent’s actions serve as a bar to full reimbursement in this matter.
CONCLUSIONS OF LAW
This is a tuition-reimbursement case, so I analyze the iues under the standard announced in Burlington Sch. Comm. v. Dept. of Educ., et. al., 736 F.2d 773 (1st Cir., 1984) aff’d at 471 U.S. 359 (1985). The Court in Burlington found that three factors determine whether a parental request for tuition reimbursement for a unilateral private school placement is appropriate. (1) If the services offered by the board of education are inadequate or inappropriate, and (2) the services selected by the parent are appropriate, and (3) equitable considerations support the parents’ claim for reimbursement, then reimbursement should be granted. In New York, the local educational agency has the burden of proving “Prong I,” that it offered an appropriate educational program that amounted to a FAPE. See N.Y. Educ. Law §4404(1)(c). The U.S. Supreme Court held in Rowley that FAPE required by the IDEA means an education that is “tailored to the unique needs of the child by means of an individualized education plan.” Board of Ed.
V. Rowley, 458 U.S. 176, 181-182 (1982).
A. Was Not Entitled to a FAPE to for the 2011-2012 School Year
1. DOE conceded that it failed to offer FAPE
As explained above, the DOE, represented in this matter by attorneys , conceded Prong I for the 2011-2012 school year on the record at the July 2, 2013, hearing. While the DOE does not dispute that was eligible for education services that year, and it freely admits it did not provide such services, it argues that as a student, was not entitled to FAPE for the 2011-2012 school year. (Ex. 32.) Parent argues that because informal schooling during the 2011-2012 school year did not meet the legal requirements of schooling under the New York Education Law, she was indeed entitled to a FAPE and that the DOE’s failure to provide FAPE entitles her to compensatory services. (See, generally, Ex. QQ.)
The question, then, is if the informal instruction that Parent provided at during the 2011-2012 school year falls short of the legal definition of schooling, would that fact trigger an obligation for the DOE to provide a FAPE to for the 2011-2012 school year? For the reasons set forth below, the answer is No.
2. was -schooled for the 2011-2012 school year
Under the IDEA, a school district need not develop or put into effect an IEP for a student who is schooled. See 34 C.F.R. § 300.455(a)(3); Application of a Student with a , SRO Appeal No. 10-089. Under New York State law, a student with a whose parent has decided to school her pursuant to state regulations may be deemed to be a student enrolled in and attending a nonpublic school for the purpose of receiving education services. (Educ. Law § 3602-c[2-c]; 8 NYCRR §100.10). Parentally placed students are not individually entitled under the IDEA to receive the same education services that they would receive if enrolled in a public school. 34 C.F.R. §§ 300.134, 300.137(a), (c), 300.138(b); SRO Appeal No. 10-089, supra. Such “parentally placed” schooled students may receive education services to the same extent that parentally placed private-school students receive education services, but only when the parent requests such services. See N.Y. Educ. Law § 3602-c[2-c]; 8 NYCRR § 100.10.
In order to comply with the regulations of the commiioner, a parent must provide written notice of intent to school her child by July 1 of the school year or within 14 days of starting the school instruction. 8 NYCRR § 100.10 (b)(1),(2). The procedures also require that the instruction provided be “substantially equivalent” to that offered at the public school in the student’s district. Finally the procedures require that the Student be provided with competent instruction and that the Parent submit to the district an instruction plan (IHIP) and quarterly reports regarding the instruction provided to the child. (N.Y. Educ. Law § 3204 (2)). Parents must comply with the New York regulations to formally school a student. From the record, it is clear that Parent did not comply with the regulations in that she did not provide evidence of competent instruction, and that she did not provide written notice of intent to school within 14 days of beginning the instruction, waiting until February 2, 2012, to notify the DOE’s Office of Schooling. She did, however, file an IHIP on April 30, 2012, (Ex. 7), and actually provided the student with instruction, (Tr. 327-28). In fact, the instructor Parent hired to work with her daughter at billed Parent for 2-hour “educational instruction” seions from early October 2010, through late August of 2012. (Ex. 30.) In light of the foregoing, I FIND that the record supports the DOE’s claim that Parent took steps to formalize her school program and that she did in fact school her child for the 2011-2012 school year albeit informally at best.
Furthermore, Parent’s argument that was not schooled because instruction she received at was not substantially equivalent to what she would have received in a DOE public school is misplaced here. Such argument might support a case for education neglect, but it does nothing to rehabilitate the lack of evidence, beyond vague and unconvincing testimony, that Parent requested education services for for the 2011-2012 school year.
3. The equities weigh against Parent for the 2011-2012 school year
Under New York Education Law, parents must request education services for schooled children in order to receive such services. Parent’s Demand for Due Proce Hearing contains no allegation that Parent sought a DOE placement for for the 2011-2012 school year or that she requested related services of any kind. (Ex. A5.) Further, Parent’s testimony makes no specific claim that she requested a FAPE for for the 2011-2012 school year. While Parent testified that she sought placement advice from , and while Parent admitted that she sought placement for at for the 2010-2011 school year, nothing in the record suggests that she sought placement from the DOE for the 2011-2012 school year. In light of the foregoing, I FIND that Parent did not seek placement or services for from the DOE for the 2011-2012 school year. As a schooled student is entitled to education services only when a parent requests them, I FIND was not entitled to a FAPE or to any form of education services for the 2011-2012 school year.
The series of troubling inconsistencies noted above lead me to find Parent’s testimony in support of her case for the 2011-2012 school year lacks credibility, and I therefore FIND that the equities favor the DOE. Accordingly, I must deny Parent’s request for compensatory services for for the 2011-2012 school year.
B. The DOE failed to offer a FAPE to for the 2012-2013 school year
As explained above, the DOE conceded Prong I for the 2012-2013 school year on the record at the July 2, 2013, hearing. Accordingly, based primarily on the DOE’s admiion at hearing and supported by Parents’ evidence and testimony presented at hearing, I FIND that the DOE failed to offer FAPE to for the 2012-2013 school year.
C. Parent’s placement of at for 2012-2013 was appropriate
When determining whether the parent’s unilateral placement is appropriate, “Prong II” of the argument, the iue turns on whether the placement is reasonably calculated to enable the child to receive an educational benefit. See Frank G. v. Bd. of Ed., 459 F.3d 356 (2d Cir. 2006).
No one factor is necearily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts aeing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every service neceary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction ly designed to meet the unique needs of a child, supported by such services as are neceary to permit the child to benefit from instruction. Gagliardo v. Arlington
Central School Dist., 489 F.3d 105 at 112 (2d Cir. 2007)(internal citations omitted).
The Second Circuit Court of Appeals holding in Frank G. embraces the concept that the appropriatene of the parent’s unilateral placement is subject to a somewhat le stringent standard of review. It held that the unilateral placement need not offer the child an IEP or employ certified or licensed education teachers, see Frank G. at 364, and that the “test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Id. (internal quotations omitted). Most recently, the Second Circuit held in R.E. that “parents may provide evidence that the child made actual progre at their chosen private placement to support the adequacy of that placement. See Frank G., 459 F. 3d 356 at 364-65. However, review of the private placement at that stage of Burlington/Carter review is more informal than review of the original IEP: a private placement need not meet the IDEA requirement for a FAPE and is not subject to the same mainstreaming requirement as a public placement.” (Internal citation omitted) R.E., 694 F.3d 167 at 187, fn3.
In the instant case, it is undisputed that . As I have found that Parent demonstrated that received educational benefit from her placement at , I FURTHER FIND that was an appropriate placement for for the 2012-2013 school year.
D. The equities favor the parent for 2012-2013 school year
In 1997, Congre amended the IDEA, providing parents the opportunity to obtain tuition reimbursement when their school district fails to provide their child with FAPE in a timely manner and parents consequently place their child in an appropriate private school placement. See 20 USC §1412 (a)(10)(C)(ii). Congre imposed limitations on parents’ request for such tuition reimbursement in certain circumstances, including limiting reimbursement when a parent acts unreasonably. See 34 CFR §300.148(d). The IDEA allows that a reimbursement award may be reduced or denied if the parents, among other things, fail to timely notify the school district that they intend to enroll their child in a private school at public expense, fail to make their child available for , or otherwise act unreasonably. See 20 U.S.C. §1412(a)(10)(c)(iii). The court in D.A. v. New York City Dept. of Ed., 09 Civ. 5097 (Feb. 1, 2011), wrote that “IDEA was prompted by Congre recognition that there is an urgent and substantial need . . . to enhance the capacity of State and local agencies and service providers to identify, , and meet the needs of all children [with ], particularly minority, low-income, inner city, and rural children.” See also Connors v. Mills, 34 F. Supp. 2d 795.
Once the trier of fact has found in favor of a child on the first two prongs, then she should determine whether equitable considerations (Prong III) support the parents’ claim and order appropriate relief. See Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
Regarding the 2012-2013 school year, the record fully documents Parent’s engagement in and cooperation with the CSE placement proce. It is evident from the record that Parent requested a placement for the 2012-2013 school year, that she persisted through multiple IEP meetings, that she visited two recommended schools, that she provided the proper notice to the CSE that she was rejecting the recommended DOE schools as inappropriate and that she was enrolling at and would seek public funding for the placement.
On her 2011 and 2012 Income Tax Returns, Parent reported adjusted gro income of $16,171.00 and $37,475.00, respectively. She testified that she earned le than $40,000 during the 2011-2012 and 2012-2013 school years, that she rents the family’s apartment, and that she owns no property, no car and no items of luxury. (Tr. 341.) As the cost of $56,992.00 tuition at exceeds Parent’s $40,000 annual income, I FIND that Parent could not afford to pay the tuition there for the 2012-2013 school year. As I have found above that nothing in Parent’s actions serves as a bar to recovering full funding for the tuition at , I FIND that the equities favor Parent. Further, I hereby adopt the holding in Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y. 1998), and I FIND that the equities warrant prospective/direct funding by the DOE here as Parent has demonstrated that the tuition exceeds her ability to pay. As the DOE failed to provide a FAPE for for the 2012-2013 school year and as Parent’s unilateral placement of at was appropriate, I make an Order below for the DOE to directly8 pay the School for tuition for that portion of the 20122013 that she attended there, for a total of $56,992.00.
ORDERS
Consistent with my findings herein, I HEREBY GRANT Parent’s request for retroactive direct payment for her daughter’s academic program at the School for a portion of the 2012-2013 school year, totaling $56, 992.00. The DOE SHALL PAY said sum to the School within 30 days of the date of this Decision.
I HEREBY DENY Parent’s request to extend eligibility for services under the IDEA by one year. I FURTHER DENY Parent’s request for compensatory services.
It is SO ORDERED. Dated: October 31, 2013
JEAN M. LUCASEY, ESQ.
Impartial Hearing Officer
JML: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 Education Act.
“The notice of intention to seek review shall be served upon the school district not le 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
8 At hearing, Parent submitted evidence that she paid a portion of the tuition to Rebecca already, approximately $4,000.00. Should Parent seek reimbursement for the monies she already paid, she may seek such re-payment directly from Rebecca as she has not sought reimbursement here. 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
Letter Description Date Pages A Request for Due Proce 04/16/13 6 B Due Proce Response 04/23/13 4 C Withdrawn D Withdrawn E Withdrawn F Withdrawn G 03/12/12 10 H 04/10/12 4 I 04/18/12 5 J
04/21/12 9 K 05/05/12 6 L Educational Summary Report 01/05/09 6 M Withdrawn N Education Annual Reports 01/2010 1 O Related 02/19/10 2 P Related 02/20/10 2 Q Annual Report 03/04/10 3 R Withdrawn S Teacher Reports to Parent from School 12/2012 to 9
01/2013 T Withdrawn U Consent for Re 04/18/12 1 V Final Notice of Recommendation 10/01/12 1 W Final Notice of Recommendation 11/07/12 1 X Letter from Parent to CSE/NYCDOE 11/24/12 1 Y Due Proce Complaint 09/14/12 2 Z Withdrawal Request for Impartial Hearing 12/4/12 1 AA Enrollment Contract 11/29/12 4 BB Payment Schedule for 2012/2013 11/29/12 2 CC Affidavit of 04/29/13 2 DD Schedule 2012-2013 1 EE Attendance Record 2012-2013 [1] FF School Brochure undated 8 GG Report June 2013 12 HH School Education Plan June 2013 3 II Withdrawn JJ Withdrawn KK Payment receipts 11/12-1/13 7 LL Resume of Undated [2] MM Affidavit of 07/12/13 8 NN Affidavit of 07/12/13 7 OO Affidavit of 07/12/13 7 PP Parent’s Closing Brief 8/23/13 19 QQ Parent’s Reply Brief 10/11/13 6
DEPARTMENT OF EDUCATION
No. Date Description Pages
9 In Parent’s Closing Brief, she requests that I remove Exhibits 1, 2, 3, 7 and 13 from the record and that I refrain from considering them in my decision because they were not authenticated by a DOE witness at hearing. (Ex. PP8.) I am granting Parent’s request as to Exhibits 1, 2, and 13, as they were not authenticated at hearing by either a DOE witness or Parent, and I have not considered them in rendering this Decision. I am retaining Exhibits 3 and 7 in the record, however, because under cross-examination Parent authenticated Exhibit 3, (Tr. 357), and discussed the content of Exhibit 7, (Tr. 360-61). Further, Ms. specifically 3 Feb. 3, 2012 Office Visit and Letter of Intent (2011-2012) 2 4 Mar. 5, 2012 Email between
1 5 Mar. 9, 2012 Notice to Parent re
1 6 Withdrawn 7 Apr. 30, 2012 5 8 Jul. 21, 2010 Report
2009-10 10
9 Mar. 4, 2010 IEP [19]
10 Aug. 9, 2012 Notice re: miing Annual Aements 1 11 Withdrawn 12 Oct. 23, 2012 Resolution Agreement 2
13 Excluded
14 Dec. 28, 2012 Authorization to Remove Student from
Schooling Register & Schooling
Outreach 2012-2013 2
15 Jan. 4, 2012 Request for 1
16 Jan. 11, 2012 Referral Cover Sheet 1
17 Nov. 1, 2012 IEP 20
18 2012-2013 Attendance Record 1
20 2012 Income Tax Return 11
21 Mar. 2012-Jun. 2013 Checking Account Statements 45
22 Jun. 2012 Savings Account Statement 2
23 Dec. 2012-Jun. 2013 School Contract Version 2 6
24 2010-2011 Applicant Information Sheet 3 requested at the close of hearing on July 22, 2013, that Exhibit 3 be allowed into the record as a full exhibit as Parent’s testimony had served to authenticate it, and I granted her request. (Tr. 369-70.) 25 Sep. 20, 2010 1 26 Aug. 6, 2010 1 27 May 21, 2013 Student Incident Form 1 28 Nov. 2009 Related Service Report (Speech) 2
29 Aug. 2009 Related Service Report (Speech) 2
30 Oct. 2010-Aug. 2012 Invoices 37 31 ID Only 32 Aug. 23, 2013 DOE’s Closing Brief 24
IMPARTIAL HEARING OFFICER
Date Description Page i May 16, 2013 Email Granting Extension 1 ii Jun. 28, 2013 DOE’s Motion to Dismi 7 iii Jul. 8, 2013 Email Granting Motion to Extend Timeline 1 iv Aug. 15, 2013 Order Granting Motion to Extend Timeline 1 v Sep. 13, 2013 Order Granting Motion to Extend Timeline 1 vi Sep. 30, 2013 Order Granting Extension;
Permiion to Submit Reply Brief 1
Footnotes
[1] On July 9, Mr. declined the invitation to write an argument in support of Parent’s case for the 2010-2011 school year when he sent the following message to me via email: “IHO Lucasey: I have reviewed the relevant authorities and I have decided that the parent will not be submitting a memorandum regarding the Department's statute of limitations defense as to the 2010/11 school year. While there is some case law in support of the notion that the continuing violation doctrine may apply in IDEA cases, the U.S. Department of Education has taken the position that it does not, see 71 F.R. s. 46540–01 at 46697 (August 14, 2006), and I have concluded that the weight of decisional authority supports that position as well.”
[3] The possibility that lack of formal education might amount to education neglect was suggested to Parent by in New York City. (Tr. 326.) The record is unclear on how Parent came to discuss education with or whether had any formal involvement with the family regarding non-attendance. I note for the record, however, that sent an email on March 5, 2012, to , then director of the DOE’s Office , indicating her understanding that Parent had “requested homeschooling for the child [SS] (DOB 12/24/1997).” Ms. email asked, “Was ?” (Ex. 4.) Mr. responded to the email, explaining that his office does not “actually approve that Parent notified the office that she intended to her daughter effective February 3, 2013. (Ibid.) Mr. email alerted Ms. that “[t]he Individualized was due on March 2” but that the office had “not received it yet.” (Id.)
[4] Per the tutor’s invoices, her rate for “ No invoices were submitted for July 2011.
[6] The only exceptions to the sequential invoice numbering are Exhibits 30-3 and 30-4, which carry invoice nos. 2010-03 and 2010-05 respectively; and Exhibits 30-7 and 30-8, invoice nos. 2011-103 and 2011-105 respectively. (See Exhs. 30-1 through 30-37.)
[7] Parent withdrew her hearing request without prejudice on December 4, 2012, ( Ex. Z), and Parent’s counsel filed the instant hearing request on April 6, 2013, (Ex. A).
[1] Excluded
[2] Excluded
[19] 2011 Income Tax Return 7