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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: September 19, 2014
November 6, 2014
Actual Record Closed Date: November 21, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2014
Advocate — Student
, CSE
, IEP witness
, school witness (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 6, 2014
Advocate — Student
Asst. Educational Director (via telephone) — Student
Parents
, CSE
I. INTRODUCTION
On August 11, 2014, after recusal by other impartial hearing officers, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on September 19 and November 6, 2014. Lists of persons in attendance and documents received in evidence are appended to the record.
The decision deadline was extended at both parties’ request on September 19 and November 7, 2014, because of the unavailability of witnesses and the requirements of due process, in order for the parties to complete their case. Before granting the extension requests, I determined that granting them would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for both parties. I also determined that the extension requests were not based on school vacations, scheduling conflicts of the parties or their representatives, or settlement discussions.
II. BACKGROUND
is an year old student classified with a
, who attends (“ ”), a non-public program not approved by the SED to provide education to students with disabilities. Classification is not disputed.
On April 22, 2013, the Committee on Special Education (“CSE”) held a review and issued an Individualized Education Program (“IEP”) (Exh. 1) recommending placement in a in a school, with per week for and per week for , (“ ”) per week for , and per week
; on May 29, 2013, a place in was offered (Exh. 2).
On August 12, 2013, the advocate for ’s parents sent a “10 day notice letter” (Exh. D) notifying the CSE that the parents visited the proposed placement and found it inappropriate, and that the parents intended to place in for 2013/14, and seek department of education funding for the tuition. On July 28, 2014, the parents’ attorney requested the instant hearing (Exh. A), alleging that the department of education failed to offer a free appropriate public education (“FAPE”) for 2013/14, because the April 22, 2013 IEP is procedurally and substantively deficient because: “ it is not clear” if there was a special education teacher participant; there was no “parent member” participant1; the CSE did not evaluate to determine his present levels of performance in academic, social and related service areas; the CSE did not conduct a (“ ”) or develop a (“ ”); the recommended program would not have met ’s needs; the IEP goals were vague and not measureable. The request seeks department of education funding for ’s 2013/14 tuition at .
III. THE CSE’S CASE
, Ed. D., a department of education School Psychologist assigned to
P. 197, testified (Tr. 13-40) that his duties include evaluations, observations, and professional development. In 2013/14 P. 197 had “ ” class, and in September, 2013 there was a place available in that class. Dr. stated that the class teacher had special education certification, that all related services were available from appropriately licensed/certified providers, that there were team meetings with the teacher and service providers, and that staff received ongoing professional development.
The teacher used instruction, and the class was for some subjects. The class went to an (“ ”) , accompanied by their teacher and class . There were opportunities for academic and non-academic subjects, and the class . Three reports cards per year were issued, and the teacher was available to meet with parents.
, a department of education Special Education Teacher assigned to CSE 7, testified (Tr. 42-61) that he is part of an IEP team with two psychologists and a social worker, and that his duties include IEP meetings, psycho-educational evaluations, classroom observations, and acting as liaison with schools to obtain progress reports for IEP meetings. Mr. testified that he participated in 's April 22, 2013 IEP meeting as teacher, and that other participants were a school psychologist/district representative, a social worker, the parent, the parent’s advocate and 1 At the hearing, the parent"s advocate withdrew the allegation that the IEP team was required to include a parent member (Tr. 60). a special education teacher. The CSE had a Student Progress Report,
Report, Report, and Report (Exhs. 3, 4, 5, 6). Mr. stated that the IEP goals were based primarily on the teacher’s telephone and written reports, and that the goals were developed with participation of the parent and her advocate. The IEP notes that, based on the teacher’s report, functions on a level in and . Mr. stated that the IEP did not recommend a , because ’s teacher told them her was effective; the IEP does not indicate that requires a . Mr. stated that the IEP team did not discuss a .
The CSE representative stated at the November 6, 2014 hearing session that there was no evaluation of between June, 2009, and September, 2013.[2]
IV. THE PARENT’S CASE
testified (Tr. 70-98) that during 2013/14 she was ’s Assistant
Educational Director, has been employed by since 2004, and has approximately 20 years teaching experience, although she does not have a teaching license or credential; her duties include classroom observations and curriculum supervision and modification. Ms.
described as a special education academic program for students in grades that offers classes and individualized curriculum. The program employs licensed/certified teachers, , , and . Teachers receive professional development in subjects including assistive technology, management, and and issues. The staff includes and . During 2013/14, was in a class; his teacher had special education certification, and the assistant teacher was enrolled in a program. Ms. reviewed ’s records, and met with his teacher and ’s educational director; she stated that was , and , and , and .
required a with much supervision to address his issues and enable him to progress. also required a component to address his . The class used instruction, and a program. The students in ’s class progressed from level during 2013/14; progress was measured by and assessments and . Report cards were issued per year (Exh. G). received and .
The Class Schedule (Exh. E) indicates that school hours were .
, and . on , and that approximately
of the school week was devoted to instruction.
’s parent testified (Tr. 99-110) that started receiving special education services as a student, and entered when he was years old.
Ms. participated in the April 22, 2013 IEP meeting; she did not remember how long before the meeting had been evaluated. Ms. visited the department’s proposed placement in September, 2013, and found it inappropriate for , because the environment was , and there were in the class. Ms. stated that progressed at during 2013/14, that his skills improved, and that his because the teacher used a , and . Ms. met with ’s teachers and related service providers. She signed the enrollment contact (Exh. H) in May, 2013, to reserve a place for 2013/14; tuition was , and Ms. paid (Exhs. I, J). She believes she is contractually liable for the remainder. The parent submitted a 2013 Form 1040 indicating income
(Exh. K).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find that ’s parents are entitled to department of education funding for ’s 2013/14 tuition at , because the department of education failed to prove that its recommendations for were appropriate, ’s parents have shown that is appropriate for , and equitable considerations support a tuition award.
A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; 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 special education and related services designed to meet the student's unique 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). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c)
caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The
IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).
The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-
018).
In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993)
("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that
(1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.
The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression.
Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v.
Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances. The
Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.
I find that ’s parents met the Carter requirements. The CSE did not have any evaluations of . The CSE is mandated to evaluate a student at least once every three years (8 NYCRR 200.4(b)(4)). I find that the CSE did not have sufficient current evaluative data to determine ’s academic performance and characteristics, and management needs, and therefore had no basis to identify ’s needs, and develop an appropriate, individualized program with meaningful goals and supports. The record indicates that the only information the CSE used to develop the IEP was a student progress report, report, report, report, and information from the special education teacher. I find that the IEP does not accurately reflect the information in those reports: the IEP goals are insufficient and vague, and do not address the areas of need identified by ’s teacher and service providers. There are no goals to address ’s , issues. There were no related service providers at the IEP meeting, and the , and goals appear to have been “made up” without any regard to the provider reports or other rational basis: they do not address any of the needs identified by ’s providers, and have no relation to the goals the providers’ reports recommended. I agree with the parent that the CSE should have conducted a and developed a . (8 NYCRR 200.4(d)(3); 200.22). The Student progress Report notes that requires a in class (Exh. 3, p. 1), the Progress Report notes that need to be in place in settings including the classroom and areas (Exh. 4, p. 1), and the Progress Report notes that required and (Exh. 5, p. 2). The CSE witness stated that the teacher informed the IEP meeting that required a . Based upon the information the CSE had, it should have determined that ’s , and developed a plan to address the . For the reasons given, I conclude that the April 22, 2013 IEP is invalid, and that the department of education did not offer FAPE for 2013/14.
I dismiss the parent’s claim that there was no special education member of the IEP team: the IEP sign in sheet indicates that ’s 2012/13 teacher participated at the
IEP meeting.
I find that is an appropriate program for , even though it is not SED-approved. offers a environment, with instruction, , , and a component; the program effectively addresses ’s , , , and issues. The curriculum is individualized to each student, and provides the , , , , which requires. There
is a student-teacher ratio , and intensive academic instruction and supervision. The program staff includes certified/licensed teachers and related service providers. The staff regularly monitors students’ progress and modifies their programs to suit their developing needs. The record indicates that has made progress at . ’s program seems reasonably calculated to ensure that benefits educationally and makes academic and social progress, and provides an education in substantial compliance with all the substantive requirements of IDEA.
I find that equitable considerations also support an award of tuition. I find that ’s parents fully cooperated and communicated with the CSE, and that they made a timely hearing request. I find that the amount of reimbursement requested is reasonable.
Therefore, I conclude that ’s parents are entitled to tuition reimbursement.
However, reimbursement must be limited to the amount paid for the part of ’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that ’s curriculum does not preclude an award of tuition reimbursement. The record indicates that about of ’s school day is devoted to instruction; therefore the parent shall be reimbursed for of the 2013/14 tuition, plus the cost of related services, exclusive of any fees or contributions.
VI. ORDER
IT IS THEREFORE ORDERED THAT: upon presentation of proper proof of payment, the department of education shall reimburse ’s parents for (a) of the 2013/14 tuition at , in an amount not to exceed . Dated: December 5, 2014
, ESQ.
Impartial Hearing Officer
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 RECORD
PARENT
A Impartial Hearing Request, dated 7/28/14, 5 pages
B Program Description, undated, 3 pages
C IEP, dated 4/22/13, 15 pages
D 10-day Notice, dated 8/12/13, 2 pages
E Class Schedule dated 2013/2014, 2 pages
F Student Progress Report, dated 6/1/14, 2 pages
G Student Report Card, dated 2013/2014, 1 page
H Enrollment Contract, dated 5/22/13, 1 page
I Affidavit, dated 8/19/14, 1 page
J Copies of Checks, various dates, 8 pages
K 2013 Form 1040, dated 2013, 2 pages
L Attendance Record, dated 13/14, 1 page
DEPARTMENT OF EDUCATION
1 IEP, dated 4/22/12, 13 pages
2 FNR, dated 5/29/13
3 Progress Report, dated 1/10/13, 1 page
4 Progress Report, dated 4/4/13, 2 pages
5 Report, dated 12/30/12, 2 pages
6 Report, dated 2/26/13, 2 pages
IMPARTIAL HEARING OFFICER
I Parent Letter, dated 9/8/14, 1 page
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.
Footnotes
[2] This statement was made during the November 6, 2014 hearing session, but was mistakenly omitted from the transcript.