NY IHO #2013-ih-989: New York City...

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: June 6, 2013

June 14, 2013

July 26, 2013

September 13, 2013

Actual Record Closed Date: September 24, 2013

Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2013

FOR THE STUDENT

Attorney

Parent

FOR THE DEPARTMENT

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2013

FOR THE STUDENT

Attorney

Father

(via telephone)

FOR THE DEPARTMENT OF EDUCATION

Attorney

(via telephone) Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2013

FOR THE STUDENT

Attorney

Mother (Via telephone) Parent Representative

FOR THE DISTRICT

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEBER 13, 2013

FOR THE STUDENT

Attorney

Parent

FOR THE DISTRICT

Attorney

INTRODUCTION

I was appointed to conduct an impartial hearing pursuant to the Individuals with Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the education of (“ ”) for the 2012-2013 school year. I held a pre hearing conference on May 22, 2013, after the end of the resolution session. Hearings were held on June 6, 2013, June 14, 2013, July 26, 2013 and were concluded on September 13, 2013. The parent and the District requested several adjournments and extensions of the time e. 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. I received the final transcript by mail on September 24, 2013 and the record was closed.

A list of persons in attendance at the hearings and evidence submitted on the various dates are appended to the decision.

BACKGROUND

is year old student who was in the for the 2012-13 school year. He has a history of (Tr 254) On June 7, 2012 a CSE meeting was held to develop an Individualized Education Program (IEP) for 's 2012-2013 school year. The team classified him as which is not in dispute. The team recommended an Integrated Co-Teaching with related services of . (Exhibit 13)

A final notice of recommendation dated August 15, 2012 recommended on . (Exhibit 10) The parents disagreed with the program and recommendations. The parent submitted a ten day notice to the Department of Education (DOE) dated August 29 and stamped received on September 2012. (Exhibit 11) 's mother advised the DOE that she had difficulty arranging to see the school with students in the class. The parent visited the recommended placement on two occasions. She sent another letter to the DOE (Exhibit

M) after visiting the recommended placement stating her disagreement with the placement. The parents continued to enroll at the School and seek reimbursement for any tuition that they paid, as well as, prospective funding.(Exhibit A)^[1]

FACTS

On June 7, 2012 the Committee on Education (CSE) met and developed an IEP for for the 2012-13 school year. Dr. attended as , Ms. attended as District Representative and and Ms. attended as education teacher. The parent attended with a representative, Ms. who is a part time employee at nd there was a parent member also in attendance. 's teacher, Ms. from also participated in the meeting. (Exhibit 8-9, Tr. 15, Tr. 353))

The 's mother received a Final Notice of Recommendation in late August and visited the school on two occasions. (Tr. 389-390) The parents signed a contract and began making payments in June. (Exhibit H) Parents had an opportunity to cancel the contract if they received an appropriate setting from a public school.( Tr.344, Tr. 395)

DISTRICT'S POSITION

The District was represented by their attorney . They maintain that the DOE offered a FAPE. They argue that the parents have never met their burden in establishing that the School is appropriate. They argue that the equities would bar the parent from relief because they did not act in good faith. In summary it is their position that any request for tuition should be denied.

PARENTS' POSITION

The parents were represented by their attorney . They argue that the IEP is procedurally and substantively not valid. They argue that the recommendation was predetermined and the were not discussed at the meeting. They argue that the recommended ICT program and the recommended placement are each inappropriate.

They contend that the School is appropriate. They argue that the parents have always cooperated and nothing would bar them from relief. In summary it is their position that the request for tuition should be granted in its entirety.

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 Burgton 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).

One of the main purposes of the Individuals with Education Act ( IDEA) (20 U.S.C. §§1400-1482) is to ensure that students with have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes education and related services designed to meet the student's 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 related to those needs, and provides for the use of appropriate 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 education teacher, or where appropriate not less than one education provider of such child (20 U.S.C.§ 1414[d][1][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).

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 words, 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).

The parent argues that there was no general education teacher at the meeting. Ms. is both a certified general education teacher and a certified education teacher who had worked in an ICT classroom as a general education teacher during the prior year. (Tr. 105-

106) I find that parent's argument is without merit. I find that the only people who could have added relevant information to the team concerning 's needs, who did not attend because of their school policy, were from the school. I find that the team was duly constituted.

The parent raises the fact that the were not discussed at the IEP meeting. Ms. who attended the meeting testified that the were developed at, but typed after, the meeting. The that are stated within the were a result of the discussion with the parent and teacher at the time of the meeting. She could not recall if they discussed the specifics of a . (Tr. 130-131) Dr. testified that they discussed at the meeting what areas and what worked on with . (Tr. 61-62) The specific areas of need were discussed, objectives were discussed but the wording of how that would be accomplished in a was written after the meeting. (Tr. 66) In light of the importance of the section in any IEP, and allegations made by the parent I questioned the witness. He reiterated that the substance of the specific was discussed in the meeting and then the actual specific wording and phraseology was typed. (Tr. 67)

Dr. testified that the team did review and discuss all of the documents including tests and and reports that were available to them at the time of the meeting. The parent raises the fact specifically that the team did not consider the . Again, Dr. testified that they did consider and discuss the most recent . (Exhibit 3)

The parent argues that the CSE had pre-determined the program recommendation. The evidence does not establish this allegation. I find that the team did consider other programs and rejected them. (Tr. 117)

The parent had every opportunity to participate and just because the parent ultimately disagrees with the recommendation does not lead to the conclusion that it was pre determined. It is undisputed that this program recommendation was discussed at the meeting. The parent raised objections to the program. Ms. recalled the parent expressing her concern with attending a class . (Tr. 140) The IEP notes in the section. She opined that would benefit from being in an ICT setting for all of his classes. (Tr. 152) She testified that managements needs are typically provided within an ICT class and there is a lot of direct to the She testified from her personal experience teaching in ICT class that there is opportunity for . (Tr. 113-114) Mr. opined that 's and his becoming easily . (Tr. 81)

At the heart of the parent's complaint is the recommendation of an ICT class. There is undisputed evidence that the parent did raise her concern with this at the meeting. This too indicates that had the parent really had concerns with the she would have known to say something at the meeting. I agree with the Department that the team could only rely on testimony from witnesses who were actually present at the meeting or documents that they were given at the meeting in determining their recommendation. There was testimony from staff at the School that they are not allowed to participate at the IEP meeting. Ms. who is 's teacher did not participate and was unable to provide an opinion as to the appropriateness of the recommended program. 's also did not participate and did not give any opinion as to the recommendation at the time of the meeting. Dr. who is the head school at , testified that she was unaware of the recommendation until she reviewed the IEP at the beginning of the school year. (Tr. 275) I find that these people who may have known 's needs and certainly knew him better than the DOE participants, did not provide the IEP team with information that they could have used to make a recommendation. Miss who was the only person from the School that attended the meeting did not offer any opinion about the recommendation. (Tr. 292)

Ms. who was present at the meeting and who had taught an ICT class during the prior year opined that the program was appropriate. She described as a typical candidate for an ICT class. She opined that his needs could be met by the in this type of setting. She explained that a would not meet his . (Tr. 117) was on grade level in

Based on the information the team had in front them and in keeping with the least restrictive environment I find that an ICT class was an appropriate recommendation. I find that an ICT class could provide prompts, supports and encouragement that he requires. I find that the IEP was reasonably calculated to enable to receive educational benefit.

The Department did not put on any witness with respect to the recommended school. The parent had made an allegation that she was told by a staff member that she (I-5) Mr. who was then the assistant principal at the school testified that he did not recall saying such a thing. He could not recall the specific visit with 's mother. (Tr. 424) I credit his testimony and do not find it unreasonable that he would not recall any specific visit. However, the parent made testified as to was the person who made the statement. (Exhibit A) I find that this is not a statement that she fabricated. However, this is not the reason that I would find the placement inappropriate. We had no testimony from the person who may have said such a remark. I have no idea if this was said by If one credited this as a reason to find the placement inappropriate this would mean that the school in and of itself is inappropriate for any student. I find that this statement has no weight except as discussed below in the equities.

The Department argues that they do not have to defend a , a specific teacher or . They argue that there is no evidence that could not grouped in this school. I disagree with the Department on this issue. The burden is on the Department to establish that the recommended placement could implement the IEP. There may not be a requirement for a or a specific teacher, however, this does not alleviate the Department from their burden. In this case there was no information provided which addressed 's IEP. There was no information provided if the school could provide related services that were mandated. If one followed Department's logic, then this would mean that any recommended placement is appropriate. The only witness who testified about the school was Mr. who had been called as the rebuttal witness. He testified (Tr. 423) This certainly does not address the ability to implement 's individual IEP. The only testimony about the appropriateness of the placement came from 's mother. She testified that on one of the visits she was told that the students in the ICT class were not native and their 's. (Tr. 367)

With respect to prong two, I will address the appropriateness of the unilateral placement. A unilateral private program is only appropriate if it provides “education instruction specifically designed to meet the unique needs of a child.” Gagliardo v. Argton Cent. Sch. Dist., 489 F.3d 105, 115 (2nd Cir. 2007), quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 359 (2nd Cir. 2006), quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982). While parents are not under the same requirements for placement of their child as the DOE, parents must demonstrate that the “services are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2nd Cir. 1988).

The parents must show that the educational program met 's educational needs Burgton supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06037; 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 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-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 education services in the LRE”)

The evidence is undisputed that has made progress at the School. The evidence establishes that he made progress academically and socially and in his self esteem.

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 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 many instances parents are required to sign a contract and give a deposit in order to make sure that the student has a school to attend in case the District does not offer an appropriate option.

In this case the parent signed a contract with the school on May 29, 2012, prior to the IEP meeting. There was no testimony provided explaining why she did not wait until she heard what the team was recommending. There was no testimony that she was required to sign the contract in order to make sure a seat was available for in case the CSE did not make an appropriate recommendation. had already been attending the School and I find it improbable that the school would not have waited for a couple more weeks for a contract. As Counsel for the Department points out, there is a clause in the contract that refers to the likelihood of success in a proceeding.

“You have advised The School that you intend to seek direct payment of your child's tuition by the Department of Education and you have further advised The School that you have consulted with counsel on the likelihood that you will prevail on the claim.” (Tr F-2)

I note that the school and Ms. , parents' attorney, waited until after the meeting to sign the contract. However, I find that the parent's signature on the contract with the above clause implies that she had made up her mind prior to the CSE meeting that would be attending the School and that she would be requesting an impartial hearing for tuition. The evidence indicates that the parents actually made a payment on June 1, 2012 prior to the IEP meeting. (Exhibit I) This is referenced as first payment and not as a deposit. I take into account that the contract has an escape clause which would have allowed the Parent until to void the contract. I am not persuaded that the parent went into the IEP meeting with an open mind and find that this warrants a reduction in any award. The parent did provide the Department with documents, did provide information, attended the meeting and did visit the school. I also find that if the parent was told the alleged remarks discussed in Prong 1, by a staff member about the school, even though it clearly had nothing to do with , this may give any parent pause, even if they had approached it with an open mind.

The parents submitted a tax return (Exhibit G) 's mother

The total amount of tuition for the 2012-13 school year for to attend is $49,500.00 (Exhibit F-1) It appears that the parents have made payments in the amount of $10,000. (Exhibit H)

In summary I find that the DOE failed to meet their burden under prong one. I find that the parent's unilateral placement is appropriate. I find that the equities support a reduction in the amount of the award.

ORDER

The District shall fund 's tuition at the School for the 2012-13 school year in the amount of $25,000.

The District shall reimburse 's parents for the amount they have already paid upon proof of canceled checks and shall pay the remaining amount up to $25,000.00 directly to the school. Dated: October 9, 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 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 maig 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 fig an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Hearing Request April 22, 2013 9 pages

January 25, 2011

February 1, 2011,

March 21, 2011 11 pages

C 2012-13 13 pages

D School Program Description 1 page

E 4 pages

F Enrollment Agreement June 13, 2013 5 pages

G Parent Tax Returns 2012 2 pages

H Parent Proof of Tuition Payments Various 9 pages I J School October 4, 2012 26 pages

K School March 15, 2013 3 pages

L Parent Correspondence to CSE August 29, 2012 1 page

M Parent Correspondence to CSE September 4, 2012 2 pages

N Affidavit of Tuition June 13, 2013 2 pages

O Report Spring 2013 18 pages

DEPARTMENT OF EDUCATION

1 Duplicative of Parents A

4 March 13, 2011 2 pages 5 Update Report February 17, 2012 2 pages

6 2011-2012 Winter

Progress Report 14 pages

7 IEP meeting minutes June 7, 2012 4 pages

8 IEP June 7, 2012 9 pages

9 IEP June 13, 2011 17 pages

10 Final Notice of Recommendation August 15, 2012 1 page

11 Parent's Letter to CSE August 29, 2012 1 page

Footnotes

[1] At the time of the hearing the parent was no longer seeking the cost or reimbursement for transportation. (Tr. 94)

New York City Department of Education, Impartial Hearing Decision