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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 23, 2013
December 11, 2013
Actual Record Closed Date: December 27, 2013
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2013
Attorney — Student
Parent (Via Telephone) — Student
District Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11, 2013
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
(Via Telephone) — DOE
The parents of filed a request for an impartial hearing on July 8, 2013 seeking funding for placement at the (hereinafter “”) for the 2013-2014 school year, as well as transportation, and pendency services. (Par Ex. A). The parents challenged the appropriateness of the recommended academic goals and the recommended site. (Par. Ex. A; Tr. p. 24).
I was designated to hear this matter on July 10, 2013 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing commenced before me on July 22, 2013, on the issue of pendency. Both parties agreed that during the pendency of all due process proceedings, would continue to receive the program recommended in his May 16, 2013 Individualized Education Program (“IEP”) (Parent’s Ex. E), in addition to continued funding at . 1A hearing on the merits was held on September 23, 2013 and December 11, 2013. The compliance date was extended on four occasions, due to the unavailability of witnesses, and the extensive testimony and issues. The final compliance date is January 7, 2014. (IHO Ex. I II, III, IV).
is a year old boy with a classification of . (DOE Ex. 2).
DOE POSITION
The DOE’s position that it satisfied the procedural requirements set forth in the IDEA and that the proposed placement would have been able to meet ’s needs. (Tr. p. 286). The DOE also argues that the recommended program is inappropriate and that equitable considerations do not favor the parent, as they never intended to place the child in a public school environment. (IHO Ex. V).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
Pursuant to that Agreement, I ordered that The school district must include the child in school programs with nondisabled children to the maximum extent appropriate. P. v .Newington Board of Education, 546 F. 3d. 111 (2d Cir. 2008).
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510
US. (1993).
An appropriate educational program begins with an IEP that accurately reflects the results of to identify the student’s needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. Application of a Student with a , Appeal No. 11-162 (citations omitted). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing CypressFairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997).
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).
An IEP must include appropriate annual goals, consistent with the student’s needs and abilities, with the and schedules to be used to measure progress toward meeting the annual goal. 8 NYCRR 200.4[d][2][iii]. For a student who takes a New York State , the IEP must also include an appropriate description of short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal. 8 NYCRR 200.4[d][2][iv].2
APPROPRIATENESS OF PARENTAL PLACEMENT
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a child supported by such services as are necessary to permit the child to benefit from instruction.” See G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. G. 128 S. Ct. 436 (2007).
EQUITABLE CONSIDERATIONS
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 FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
I find that the parents cooperated with the school district by participating in the development of the IEP, and by notifying the CSE of their disagreement with the recommended site, and of their intention to seek funding for their private placement. I find that they are unable to pay the tuition (other than the $1,500 deposit already paid) and seek reimbursement.
I find that the tuition charged by is appropriate, taking into account the small , the specialized nature of the instruction provided, and the available resources at the school.
ORDER
Therefore, it is hereby ordered that the DOE shall:
was recommended for an . (DOE Ex. 2, p. 20).
(1) Reimburse the parents for the $1,500. deposit paid toward ’s tuition at the for , for the 2013-2014, upon presentation of proof of payment thereof; and
(2) Pay the balance of the tuition at for the 2013-2014 school year, by sending payment directly to the school; and
(3) Continue to provide with the related services recommended in the May 16, 2013 IEP. Dated: January 2, 2014
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
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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
F Private School IEP, 11/9/12, 6 pp. G 5/13/13, 2 pp. H , 5/14/13, 5 pp. I , 4/19/13, 1 pg. J , 4/21/13, 3 pp. K , 4/24/13, 3 pp. L , undated, 2 pp. M May Report, 2 pp. N Report, undated, 3 pp. O Final Notice, 6/10/12, 1 pg. P Letter to Placement Officer, 6/19/13, 3 pp. Q Undated Description of Program, 4 pp. R Classroom Schedule and Profile, 2013-2014 School Year, 4 pp. S Tuition Agreement, 6/28/13, 4 pp. 13 13 T Final Notice, dated 6/13/13, 1 page
DEPARTMENT OF EDUCATION
1 , 2/15/13, 8 pp. 2 IEP, 5/16/13, 23 pp. 3 , 2 pages (DELETED)
IMPARTIAL HEARING OFFICER
1 Summary of Pre-Hearing Telephone Conference, dated, 7/31/13, 1 page 2 Case Follow-up with Extension, 9/23/13, 1 page 4 Request for Extension of Compliance Date, dated 12/11/13, 1 page 5 DOE Closing Statement, undated, 2 pages 6 Parents’ Closing Statement, 12/24/13, 21 pages