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Case Number Student’s Name Date of Birth
District ty
Hearing Requested By Parents Hearing Dates November 12, 2013 December 13, 2013 December 18, 2013 January 9, 2014 January 16, 2014 February 6, 2014 February 11, 2014 March 28, 2014 Record Close May 16, 2014
Hearing Officer Sharyn Finkelstein Esq.
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of ( or “student”) The family was represented by their attorney . The District was represented by their attorney . [1]On July 10, 2013 The parents filed a request for an impartial hearing. On August 20, 2013,I held a pre hearing conference after the end of the resolutions session. On September 13, 2013 the parents filed an amended request. (J Exhibit 1) Among other things they seek compensatory services for the 2011-2012, 2012-2013 and 2013-2014 school years as well as tuition reimbursement for the 2012-2013 and 2013-14 school year. I held a pre hearing conference on September 19 and another pre hearing conference October 28 after the resolution session had ended. The parties scheduled various hearing dates with the intent to complete the case after five hearing dates. Hearings in this matter were held on November 12, 2013; December 13, 2013, December 18, 2013, January 9, 2014, January 16,2014; February 6, 2014; February 11, 201 and concluded on March 28,
During the course of the hearing, it became clear that additional dates were required because of lengthy testimony from witnesses. The parties moved to extend the compliance date on various occasions in light of anticipated testimony and availability of witnesses.[2] In considering the requests, I weighed the cumulative impact of the relevant facts and found that then 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. There was no harm to the student because he was attending school and any remedy had to do with financial compensation. The parties requested time to receive the final transcript and submit written briefs. Due to the lengthiness of the proceedings and the multiple issues involving multiple years I granted the request. The parties requested a final extension of the timeliness in order for me to read their briefs and write a decision.
I received briefs from both parties on May 5, 2013. After reviewing the evidence, I emailed the parties with respect to certain documents that I did not have in my possession. Ms. requested that the record remain open until the District provide a document with respect to the classroom observation by Dr. that took place at . [3] The District maintains that such a document never existed. The parents claim that there was such a document. It became clear that no such evidence was going to be produced and on May 16, 2014, I advised the parties that the record was closed. I would however, consider re-opening the record if the document was found prior to my submitting a decision.
Attached to the record are names of persons who appeared on the various hearing dates and the evidence that was entered into the record.
PETITIONER'S POSITION
The Parents maintain that the District did not provide with a free appropriate public education (hereinafter referred to as “FAPE”) for the 2012-13 and 2013-14 school years. They argue that in spite of compelling evidence, the District did not recommend an out-of-district placement. They further argue that even when the District was in agreement with an out-of district placement they did not identify any program. They argue that the recommendations of the District were inappropriate. They maintain that the School is appropriate and equitable considerations support parents' claim for reimbursement. It is their position that tuition reimbursement for attendance at should be granted in its entirety.
They argue that it was the parents who initiated all of the Section 504 and Committee on Special Education (hereinafter referred to as “CSE”) meetings They argue that the District did not provide a FAPE for the 2011-12 school year. It is their position that they are entitled to reimbursement for expenses that they have incurred, including tutoring and various Doctor expenses, because of the District's failure to provide a FAPE for the 2011-2012, 2012-2013 and 2013-2014 school years.
DISTRICT'S POSTION
The District maintains that the programs recommended by the CSE for for the 2011-2012, 2012-2013 and 2013-2014 provided a FAPE for They argue that the IEP's developed for over the years were substantively and procedurally appropriate. They argue that School is not appropriate. It is their position that the District was unable to identify a program because of the parents' failure to take on intakes or cooperate with the District. They argue that the equities do not support the parents. It is their position that tuition reimbursement should be denied in its entirety.
FACTS
is a thirteen year old boy who is currently classified as a Student with an (Tr. 136) He has been seen by various Doctors and has been on and off various dosages of multiple medications including and (J Exhibit 10) He presents with multiple diagnoses involving mood and anxiety. (Tr. 829) In second grade he was diagnosed with and by his pediatric neurologist. (Tr. 1237) His private Doctors have disagreed with his diagnoses, specifically bi-polar.
attended school in the District through November 2012 and the first quarter of seventh grade. (J Exhibit 1) He was referred for a 504 accommodation plan at the end of his second grade. A plan was developed for the 2008-2009 school year when would be in third. Grade. (J Exhibit 4, Tr. 80). He was offered various accommodations including refocusing and redirection, check for understanding, directions repeated, preferential seating and checking of his assignment pad. (J Exhibit 4) (Tr 1240- 1241) They discussed the recommendations and accommodations that were both classroom accommodations as well as testing accommodations. (Tr. 86) Everyone agreed that they were appropriate accommodations and would address his needs. (Tr. 86)
had been receiving private tutoring and and private speech support in third grade.(Tr. 1240)
A similar Accommodation Plan was developed for 's fourth grade, the 2009-2010 school year. (J Exhibit 6) They reviewed his progress in grade three and he continued to require support. The parents spoke about the update of his medication. They increased his Academic intervention services in order to support his reading and writing comprehension. (Tr. 90)
Parents increased the amount of his outside tutoring to five days a week. (Tr. 1241)
On July 6, 2010, prior to entering fifth grade, his parents referred him to the CSE for an evaluation. (J Exhibit 7) Parents asked for complete evaluations including an therapy evaluation because of concerns with his handwriting (Tr 93) They were concerned with 's written expressive disorder and that his grades had dropped. (J Exhibit 11) informed the District about the various medications was taking at the time and the various Doctors he was seeing. In the social history, the parents reported that while is dealing with a lot of issues and has exhibited serve anxiety and his behavior has “gotten a lot better” (J Exhibit 11) .
Cognitive testing revealed that was functioning generally within the average range with a slight deficit in working memory. (J Exhibit 12) Educational testing revealed academic achievement solidly in the average range, with a weakness in written expression. (J Exhibit 13)
On August 27, 2010, the District found was ineligible for special education services. (Tr. 1246, J Exhibit 18) The Section 504 committee met in order to add some modifications which were incorporated into the 504 plan. (Tr. 97, J Exhibit 19) The District provided with supplementary testing accommodations in his current 504 plan, a monthly occupational therapy consult, flexible seating and access to a computer. (Tr. 1247) All of the members of the Committee agreed with the finding of ineligibility.(Tr. 97) At the hearing the parent explained that she had no choice but to agree. (Tr. 1246)
was in constant contact with 's teachers. (Tr. 1248-1249) She sent an email about her concerns in September 2012. (OOOO) She met with , about concerns in October 2010. (Tr. 1288) The parent continued to send emails to the District through November 2012. (P Exhibit PPPP-VVVV) SH acknowledged that the District had been responsive to her concerns. They promptly responded to her emails and phone calls with one or two exceptions. (Tr. 1439)
On March 15, 2011 a section 504 committee review meeting was held for the 2011-2012 school year. (J Exhibit 21) expressed concern about the increase in demands in middle school. He noted that he was pleased with L's progress but advised them that gets very anxious about every assignment or piece of of work he has to do. The parents advised them of a recent diagnosis of and updated them on s medication. (J Exhibit 21). shared with the team that does not present the same way at home as in school. His needs were being addressed under a 504 plan. The team incorporated modifications into the 504 plan (Joint Exhibit 19)
continued to see a tutor over the summer to prepare him for reading and writing. (Tr. 1298, 1915, 1916) Parents hired a music teacher to instruct him on the bass guitar because he was going to being taking band at school. (Tr. 1304) In order to address his social anxieties they began a fitness program to address his weight gain brought on by medication. (Tr. 1915) was also seeing a tutor between July 2011 and December 2012 in order to prepare him for middle school. (Tr. 1930)
By mid July 20211 starting having bathroom issues. (Tr. 1299)
On September 9, 2011, the parents again sought special education services for . He was now attending middle school in the sixth grade. mailed Ms. “I would like to get the ball rolling to get L an IEP for mental health issues. (P Exhibit EEEEE) The District did not view this request as a referral to the Committee on Special Education (“CSE”) (Tr. 1651)
The parents were concerned with 's emotional and academic performance and wanted an evaluation. (Tr. 115) The parents were concerned that the 504 plan was not sufficient to address his needs.
In September 2011, had a very unfortunate incident involving his band teacher, Mr. . He had announced in front of the class that did not belong in band and compounded the situation by later stating in front of the class “one of you got me in trouble with your mommy. And if you need to say something to me, you need to come to me, and not go to your mommy..” (Tr. 1304, 1309) The District removed from band based upon the Parents' request. (Tr. 1308)
was having difficulty interacting with some of the students. did not want to participate in gym. One of the factors was his weight gain which caused him to not want to change in the locker room. This continues to be a struggle for up to and including his time at . (Parent's unilateral placement.)
On October 11, 2011 the parents made a third referral to the CSE. was the guidance counselor in grade six and completed the referral (Tr 115) The parents had concerns that he was recently diagnosed with bipolar disorder. They had concerns with his emotional regulation and his academic performance. The parents wanted an evaluation. The team conducted an educational evaluation, an evaluation, and evaluation. The school psychologist also administered a BASC assessment as part of the evaluation. They conducted an Educational Assessment of using the Wechsler Individual Achievement Test, Third Edition. (J Exhibit 26, Tr. 118) They did a classroom observation.
As part of 's pre-referral interventions had been placed in integrated co-teaching class. He had the support of a special education aid as well as an increase in in school. (Tr. 119)
fixated on the need to be close to a bathroom at all times. was experiencing difficulties with others students. had reported on numerous occasions that his excessive bathroom was the result of his anxiety. He was unable to attend gym. In October, 2011 had stopped attending gym. (Tr. 1342)
On November 9, 2011, expressed a detailed plan in school. He threatened to run out in front of a car or use his Tae Kwon Do belt to hang himself from his bunk bed. alerted the school. He came back to school with a note clearing him to return to school. It indicated that he was not a danger to himself or anybody else (Tr 466, 120) )The District's response was to put an aide in place. (Tr 1928)
On December 1, 2011 Dr. wrote a letter recommending that be classified as a student with an emotional disability. He recommended referral to be made to “ appropriate therapeutic support school day programs.” (Exhibit 32)
On December 5, 2011 Dr. , a psychologist who had been treating since September 2011 recommended therapeutic school environment. (Exhibit 32A)
On December 6, 2011 the District convened a CSE meeting. The team had the letters from both Dr. and Dr. . The team found o be eligible and classified him with an They developed strategies and support. (Tr. 121) The Committee recommended integrated co-teaching classes for all his core subjects, individual and group and individual therapy. (J Exhibit 34) They recommended various program modifications and testing accommodations. Ms. ,a school psychologist who had been providing services to , explained that they created a program that really formalized the things or many of the things that they were doing already. (Tr 469) He received grading on a pass-fail basis to avoid the stress of grades. They added a morning check in with , 's guidance counselor (Tr. 1341) He would have access to the school nurse on an as needed basis. They removed physical education from his weekly schedule and added occupational therapy once a week, access to computer refocusing and reduction (Tr 1342) Ms. was going to walk around the school with him during gym. (Tr 1342) L would now have the services of his aid, , all to himself. He who would go with to all his classes and watch him outside the bathroom. The team developed study skills and emotional goals. The goals were developed in consultation with parents and Dr. . There were no objections from the parents. (Tr. 132)
On January 16, 2012, conducted a Functional Behavior Analysis (“FBA”) which addressed the frequency with which he left the classroom to go to the bathroom.(J Exhibit 37) They targeted those behaviors because of great concern to the parents at time of meeting (Tr 127)
On January 17, 2012, the CSE reconvened to discuss the results of the FBA and 's progress. (J Exhibit 38) They were going to inform in advance, if anything was going to happen, such as a fire drill. They placed a special aide that would be outside of the bathroom area to provide with access. He could visit the nurse when needed. (Tr. 125) The purpose was to put supports in place so that would not have any concerns or issues with bathroom. (Tr. 129)
It was reported that had been making progress and seemed happier at home. Specifically reported that looked forward to the individual attention he had been receiving from . (J Exhibit 38) There were no objections from the parents. (Tr. 132)
On or about the beginning of February, 2012, there was an incident involving the aide asking to call his girlfriend. He was fired and replaced with , who descried as a wonderful person and helpful to (Tr 1350)
On June 6, 2012 the CSE convened and developed an IEP for the 2012-13 school year. (J Exhibit 44). They recommended a program and supports which were similar to the services recommended on the previous IEP. The Parent agreed with the IEP that had been developed. (Tr. 1455)
On October 1, 2012, the Committed proposed to amend the current IEP that modified class work by quantity. The parents were in agreement. (Tr 138) (J Exhibit 46)
On October 4, 2012, the Parent and amended the IEP, upon consent, to include Modified Classwork for Quantity and Modified Tests and Quizzes for quantity. (J Exhibit 47)
On October 5 , 2012 the parents requested an emergency CSE meeting. provided a letter from 's psychiatrist which stated that had been emotionally unstable, particularly at home. (J Exhibit 48)
On October 16, 2012 the District convened a CSE meeting to discuss the parents' concerns. (J Exhibit 50) The Committee discussed and agreed upon ways to support in the classroom and reduce his anxiety in school The parent was in agreement with the recommendation. Dr. his then psychiatrist submitted a letter stating that was “emotionally decompensating” J Exhibit 50) They added an aid to support him in the bathroom and support his anxiety. They changed his grades to pass fail with the exception of one grade of his choosing which was held on October 16, 2012. (J Exhibit 48, 50) The committee substituted an ipad for the computer and Alphasmart. They added the presence of an aid during his Learning Center. (J Exhibit 50) The Parents were in agreement with the recommendations.
In November 2012 as a result of Hurricane Sandy the family had to leave their home for several weeks. They were then separated into two homes. had expressed concern about the impact of this on (D Exhibit 6)
Towards the end of 2012, at the request of was no longer seeing Dr. who had been providing him with therapy.
On November 21, 2012 expressed thoughts by banging his head against a glass door.
On November 26, 2013, the Parents in conjunction with 's psychiatrist, admitted him to the partial hospitalization program at . On November 28, 2012 began a day treatment program. He attended daily therapy and returned home every afternoon. responded well to . Social worker , noted in a letter dated December 12, 2012 that he has been “responding positively to the highly structured\ and supportive therapeutic milieu. (J Exhibit 54) The District coordinated work with the hospital staff.
's Doctor at had mentioned School to the Parents as a possibility for upon his release from the program. 's mother investigated the program and submitted an application for his admission in December 2012. She brought to visit and sit in on some classes. He spent a few periods to determine whether he would be a good candidate for admission. (Tr 1710)
On December 17, 2012 Dr. submitted a letter in which he strongly recommended an out of district therapeutic placement for (Joint Exhibit 55)
The CSE met on December 20, 2012 for an annual review and everyone agreed that could not return to the School. The committee had three letters recommending a therapeutic placement and one specially recommended out of district . The committee sought additional information in the form of a psychiatric evaluation by the School Psychiatrist and an updated BASC assessment. (J Exhibit 56) They made a recommendation for an evaluation to consider more information to determine program recommendations. (Tr 293) They wanted to do a three pronged assessment to get a sense of the parents, the teachers and 's assessment of himself from a social emotional functioning standpoint. (Tr. 498) They recommended home instruction for pending the results of the testing. (J exhibit 56)
On January 18 the parents sent a letter that they disagreed with the delay and consented to evaluation by the District and BASC-2 evaluation.
The parents did not want to avail themselves of home instruction They notified the District that they were placing at School on an interim basis. (Tr .395) They executed an interim contract on January 10, 2013.(P Exhibit KKKKKKKK) and unilaterally placed the student in They provided all necessary consents for the evaluations and remained open to consider the CSE process. (Tr 396)
met with the School psychiatrist on January 7, 2013, after holiday break. (J Exhibit 61) The District received the assessment and Dr. s psychiatric report on January 7, 2013. (J Exhibit 61)
A meeting that had been scheduled for January 23 had been canceled. The team met on February12 and reviewed Dr. 's report. (J Exhibit 70) They reviewed the hospitalization partial program survey (J Exhibit 68) and BASC rating scales. (J Exhibit 61) The Director at appeared at the meeting and described how well had adjusted.
The team agreed that applications should be sent out to the therapeutic support programs which include New York State approved private therapeutic programs as well as day programs such as and . They offered home instruction or a pending the program intakes. The parent refused both options.
After the meeting the District sent out packets. (J Exhibit 78) Neither the nor had space available for The District received rejection letters from the schools on March , 1 and March 4, respectively (J Exhibit 72) The District did not share the contents of the letter with the Parents until July 2013. (P Exhibit LLLLLLL) and invited for an intake.
The parent went to visit the programs on her own and determined that they were not appropriate for Ms. did not take on any intake. Dr. advised the parents not to bring on an intake interview in the spring of 2013; (Tr. At 1563) There is no dispute that was not appropriate. invited her to come back with L so they could do an intake.
The had programs at the school site. They had a therapeutic support program (“TSP), AIM program, and gifted special education program.
Dr. a psychologist at had met with the Parent. She sent an email stating that she invited to come back with for an intake. She explained that without cannot determine appropriateness. (Joint Exhibit 73)
On April 9, 2013 the Parent wrote a letter to Dr. , District Superintendent, detailing her concerns with the two school visited. (J Exhibit 73)
On April 17, 2013, Dr. responded by informing the Parents that the CSE “will be reconvening to consider placement for your son for the remainder of the 2012-2013 school year as well as the 2013- 2014 school year.” (Tr. 1406, 1407, 1552)
The CSE never reconvened for the 2012-13 school year to consider alternate placements. (Tr. 1406)
On July 30, 2013 the CSE convened for the 2013-2014 school year. Ms. attended the IEP meeting and reported that had had a good year and had made progress towards his IEP goals. (Tr. 1814) They reviewed an email from Dr. stating that she had explained to that without being there for an intake they cannot determine the appropriateness.(J Exhibit 74) The team strongly recommended that complete the intake process. They offered the family the option of going to the program, , pending the parent taking for an intake. (Tr 413) This was described as a small class with New York State common core curriculum and both individual and group (Tr 172) There were discussions about the parent's willingness to bring on the intakes. The parent stated that would have to consult with 's psychiatrist before agreeing to resume the program search. (P Exhibit LLLLLLLL) The parent advised the team that was doing very well at and wanted him to continue. Ms. informed the parents at the meeting that need to attend intake interviews for the various programs being considered. (Tr 1558) The committee recommended that complete the intake process at at I (J Exhibit 78) They recommended the Program in the interim and advised the parent to bring for an interview.
On August 5, 2013 the Parent, informed the District in writing that they were withdrawing and that he would be enrolled at School. They would see reimbursement for tuition at public expense. (P exhibit TT)
On September 27, 2013 the parent attended the intake at program accompanied by a representative from her attorney's office. They were unable to finish the intake and was unwilling to return on another day.
wrote a letter to Ms. on October 24, 2013 explaining why the placement was not appropriate. (P Exhibit MMMM) She never received a response (Tr.. 1427.)
The parent never informed the District of consulting with 's psychiatrist about attending an intake. The parent never did take to the intake at Irvington school site.
On March 19, 2014 the District held a meeting for the 2014-15 school year. At least part of the meeting involved discussion about the remainder of the 2013-14 school year.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is well-established that a district may be required to pay for private educational services for a student with a disability, 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 Burlington v. Dep’t 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 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]. A FAPE includes special education and related services designed to meet the student's unique 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 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 a Child with a Disability, Appeal No. 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 special education teacher, or where appropriate not less than one special 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 Disability, Appeal No. 07-007.
School districts are not responsible for addressing students' behavior outside of the school setting unless such behavior prohibits the student from making meaningful progress in school. In Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114 (2d Cir 1997), the Second Circuit held that a school is not relieved of the obligation to address student behaviors arising outside of the school setting it if is necessary in order for the student to make educational progress. However, if a student is making educational progress in school, problems at home resulting from family conflict are not the responsibility of s school district. Hall v. Freeman, 558 IDELR 248, (N.D. Ga 1987).
The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).
The parent's right to meaningfully participate in the educational placement process- that is, the development of the student's IEP-does not extend to the selection of the student's specific school or classroom, (T.Y.. 584 F.3d at 16, 419-20)
The Second Circuit has found that, where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement,the validity of proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been implemented. (A.M. v. New York City Dep't of Educ., 2013 WL 4056216, at *13 [S.D.N.Y. Aug. 9, 2013]; E.F. 2013 WL 4495676 at *26; M,R. v. New York City Dep't of Educ., 2013 WL 4834856, at *5[S.D.N.Y. Aug. 14, 2013]
[finding that the argument that the assigned school would not have been able to implement the IEP is “entirely speculative”]; see also N.K. v. New York City Dept's of Educ., 2013 WL 4436528, at *9 [S.D.N.Y. Aug. 13, 2013] [citing R.E. And rejecting challenges to placement in a specific classroom because “[t]he appropriate inquiry is into the nature of the program actually offered in the written plan”]
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. Alignton 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 school 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 appropriateness 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 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.
While parents are not held as strictly to the least restrictive environment standard as school district\s, “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 Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”).
The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.
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 IDEA requires the District to identify those children who were “suspected of being a child with a disability … and in need of special education.” 34 C.F.R. §300.111(c)(1), The “child find” obligation extends to children “who are suspected of being a child with a disability … and needs special education even thought they are advancing from grade to grade...” 34 C.F.R. §300.111(c)(1). A district's child find duty is triggered when there is “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability” (New Paltz, 307 F. Supp.2d at 400, n.13, (N.D.N.Y.2004). quoiting Dep't of Educ, v. Carl Rae S, 158 F. Supp 2d 1190, 1194
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wenger v. Canastota, 979 F. Supp. 1547 [N.D.N.Y. 1997])
An order by an impartial hearing officer for a district to pay costs for unapproved services is permissible as an equitable remedy to allow Parents to be reimbursed once they have obtained an paid for appropriate services. See Applic. Of NYC Department of Education No. 05-073 (2005) (citing 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.403[C].
The parents argue that the District denied a FAPE for the 2011-12 school year.
At the December 6, 2011 meeting, the committee recommended integrated co-teaching classes in all core subjects, school based counseling, daily check-ins with the guidance counselor, occupational therapy, and a shared aide, modified homework, pass fail grading and frequent breaks.
Among the things that were discussed at the meeting which was planning for 's sixth grade was how he had done during his fifth grade. The teacher reported that was meeting the demands of the curriculum. They reported that “his behavior has been appropriate with occasional need for refocusing and with appropriate modifications. “ (J Exhibit 34)
Parent points out that the District had letters from two Doctors who recommended therapeutic settings. It is unclear what information if any that Dr. had known about L's program at the District.(J Exhibit 32) It is equally unclear as to what information Dr. had with respect to his program at school. His information comes from and his parents which cannot be considered objective. (J Exhibit 3 2 A) Dr. had only been treating for a few months at the time he wrote the letter.
did not remember dissent from anyone at the meeting. We worked together and reached consensus in terms of developing a plan that I believe we all thought would meet L's needs.” (Tr 474 ) Dr. whom the parents rely on to show that the District did not provide a FAPE, attended that meeting. There were no objections from the parents or their attorney. (Tr. 132)
There was no evidence even at the hearing that anyone disagreed with the goals. There was no evidence that anyone had disagreed with the supports that were put in place. One of the issues that continually came up was the fact that the school was not seeing the behaviors that the parents were seeing at home. Dr. explained that it is not uncommon for students to hold it together during the day.
On January 17 the CSE reconvened and developed a plan to provide with more support so he would not have concerns about the bathroom. (Tr 129) This was after an FBA had been conducted. Again, there was no objection that the program was not appropriate. (Tr 132)
On June 6, 2012 the CSE met and developed an IEP for the 2012-13 school year. At the meeting for 's seventh grade there were discussions about how he performed in sixth grade .(J Exhibit 44) He was going to the bathroom less often (Tr. 154) I find that this supports the appropriateness of the plan that was put into place as a result of the FBA. He was more productive in his class work. recalled the discussion (Tr 1455) He had a good relationship with the guidance counselor .She agreed that he was making progress. (Tr 1456) on cross examination explained that the time of the June 2012 meeting “home was getting better we thought. (Tr. 1577) I find that testimony from this meeting establishes that the 2011-2012 IEPs were reasonably calculated for to make progress. I find that the District met their burden under prong one.
The parent points out specific actions and inaction by the District during the 2011-12 school year that resulted in a failure to provide a FAPE.
With respect to the allegations about bullying, the parents never made any formal complaint. (Tr. 732) They did however, advise the District on many occasions of the problems that was having with other students. Dr. opined that 's difficulties did not rise to the level of bullying. (Tr. 480) Dr. had experience in dealing with bullying. 's teacher never saw any bullying in the classroom, hallway or cafeteria. There was testimony that District has an immediate and firm response to making sure a child is protected. I find that the evidence does not support a finding that 's difficulties with other students rose to the level of bullying.
It is undisputed that had a terrible experience with the Band involving the teacher. However. it is also undisputed that it was the parent who wanted him removed from band and in response to her request the District complied. I find that this very unfortunate incident does not establish that the District failed to provide a FAPE.
Parents argue that the staff did not have the proper training to address and deal with 's Diagnosis. Dr. , who is 's current Doctor testified that he ruled out the diagnosis. In addition there is no evidence that has any staff with this type of training. has been diagnosed with various diagnoses that have even caused disagreement among his Doctors. I find that the staff at a school not having expertise in every diagnoses does not lead to a finding of a denial of a FAPE.
Parent argues that there was ineffective counseling at the school and specifically refers to the inadequacy of Dr. . Dr. is a licensed psycho-linguist in the State of New York and has a certification as a school psychologist. (Tr 450) She has taken continuing education and professional development over the year. (Tr. 451) She described “ a pretty instant rapport” with upon their meeting. Her purpose was to help him navigate his environment and provide him with strategies for managing the stressors of the day. She described it as “ a place to express his feelings.” She saw alone and during lunch groups. He came regularly to both sessions. (Tr 455) There is conflicting opinions as to why ended the sessions with Dr. . Dr. opined that it was because she had suggested to that she spend more time with vehemently denies that this was the reason. stated as her reason, “he didn't like her any more. He was bored with her and didn't want to be with her any more.” She opined that was getting too personal with him. He “didn't want to talk about what was going on at home with her....(Tr 1357) Dr. stated “there were issues, I think, with L, not really fully connecting well with Dr. as per his report. (Tr. 813) I find that the evidence does not establish that Dr. was not qualified to provide with services. I find that there the evidence of very unspecific remarks made by to both his parent and Dr. do not support Parent claim. I find that it is not unusual that a person may at some point not be “happy with their therapist.” There is no evidence how long a period felt that way. There was no evidence that he had stopped going to the sessions prior to them being terminated. As a result of the parent's request for her to stop counseling, started counseling with Dr. for group therapy who stated liked. (Tr. 1358) I find that the evidence in no way establishes that the District did not have appropriate staff.
The parents argue that the District did not address his “raging behavior”. received an email from Mr. describing 's making a loud noise However, she stated in cross examination about the “loud noise”...”I don't think they were rages” (Tr 1461)
It is still not unclear why had difficulty with attending gym, however, there are a number of reasons that come into play. It is undisputed that the medicine had been taking caused him to gain weight which caused him to have issues with self esteem. The Distinct put procedures into play such as having Ms. walk around the school with him during gym (Tr. 1342) Parents point out that stopped attending gym. Unfortunately this is still an ongoing issue even in Ms. in describing 's eighth grade stated that “ he continues to be anxious about PE but willing to walk to the Y.” (Tr. 1765) I find that 's continued struggles with gym did not result in the District' failure to provide him with a
FAPE.
The parent points out the Ms. had stated that the District would develop a Behavior Intervention Plan. I find that the lack of follow through is a procedural error. However, I find that this is not a procedural violation that impeded right to a FAPE or caused a deprivation of education benefits. They did address the issue at the February meeting and in fact made improvement with his bathroom issues.
The parents argue that the District violated their Child Find Obligations. It is undisputed that on September 9, 2011 the parents sought education services for mailed Ms. “I would like to get the ball rolling to get an IEP for mental health issues. (P Exhibit EEEEE) This was not the first time the parents had made a referral. explained that she did not view this request as a referral to CSE. (Tr 1651) I agree with the parents that the failure to act upon this request and treat it as a referral, especially, when the parent references “IEP”, was a violation of Child Find Obligation This resulted in a one month delay in having a meeting which resulted in 's classification. In October the parents had made another referral and the District immediately responded and set everything in motion for the meeting. The parents argue that but for this one month delay, disastrous consequences would have been avoided. I do not agree. was already receiving various interventions and supports prior to the meeting. There are other facts that may have contributed to 's issues. There are other factors that need to be considered with his experience in sixth grade. In response to being asked if 's medication was affecting his behavior stated “We're not sure.” just decided to put him back on another
(Tr 1444) Home issues may have been another factor that contributed to his problems. I find that the month's delay certainly does not warrant any relief.
In summary, I find that the District offered a FAPE for the 2011-12 school year. However, for purposes of a complete record, I will address the relief that the parents requested.
The parents seeks reimbursement for services from various Doctors that had been treated by during this time period. There was no evidence with respect to how long Dr. had been treating prior to this period. The evidence is undisputed that had been seeing Doctors to address his medical diagnoses over the past several years. There is no evidence that now that is at that he no longer requires medication. I find it I find it implausible that 's therapy sessions do not address many issues that have nothing to do with school, including but not limited to, relationships with family members, home life, and issues of self esteem caused by factors independent of the District. There was testimony that one of the side effects of his medicine led to weight gain which caused him anxiety. This certainly contributed to his anxiety around going to the gym. I find that this had nothing to do with the District. had to see the Doctors for purpose of receiving medication. With respect to the home environment, there is no evidence that this is not a loving and supportive environment. 's parents have cleanly done whatever they determined could possibly help in and out of school. However, some of the test results and evidence did point to issues around home life. Factors outside of the District continue to be possible contributors to 's anxiety. The family having to move because of Hurricane Sandy as reported by did cause to have further anxiety.
It is undisputed that as described by Dr. is very complicated boy. (Tr. 830) There were no specifics given by any Doctor about what issues they address during their therapy sessions. I find that would have attended therapy and required medication regardless of anything the District did or did not do.
As far as the tutoring sessions, there was little evidence regarding the content of the sessions, the progress made, or the need for such session. The parents clearly provided with whatever they possibly thought would be helpful to him. However, I do not find that the evidence is sufficient to establish that the District was obligated to provide him with tutoring. As will be discussed , I find that there was academic progress during the years when L attended the District. I find no evidence that the parents requested any extra academic instruction for L that they were denied. I find that the parents are not entitled to the relief.
The Parents argue that the District denied a FAPE for the 2012-13 school year.
On June 6, 2011 the Committee developed an IEP for the 2012-13 school year. (J Exhibit 44) As of June 6 meeting parent thought he was making progress. (Tr. 1488) They recommended integrated co-teaching classes in all cores subjects, with school based counseling, individually and in a small group, daily check ins with the guidance counselor. I find that the IEP was appropriate.
On October 16, the committee met because of Dr. letter. (Exhibit 50) The teachers were still not seeing the behaviors in school that the parents were seeing at home. (Tr 896) The team made several modifications. I find that the IEP was appropriate.
Parents do not allege any particulars with respect to the June 6, or October 16 IEPs. I find that the IEPs were reasonably caluculated for to make progress.
The real issues centers around the IEPs that were developed on December 20, 2012 and February 12, 2013. [4]
On December 20 2012 the CSE met and determined that they required more information to make a recommendation. Parents argue that they had ample evidence that required an out of district placement. I do not find that the District wanting additional information was a denial of a FAPE. The District acted very quickly to obtain the information. It was quite clear at this meeting that they were not making any final recommendation for the 2012-13 school year until they received additional information. The District offered home instruction in the interim. Parents argue that home instruction would have caused to regress based on Dr. testimony. Dr. did not attend the meeting. The parents certainly could have asked him to attend. Dr. testified that home instruction would have been “inadequate and and “probably would have led to him decompensating further” (Tr. 844) It is unclear if he had related this information to the Parents prior to them deciding to place at on an interim basis. The parent explained that they expected the District to have recommended a therapeutic program on the day of the meeting. I find that even had the District acted sooner, when had been first admitted to they still would not have yet been able to recommend a specific placement. As will be discussed, the process involves packets going out and interviews which can take a while to complete. was released on the day of the meeting and was reported to have done very well. The parents have maintained throughout the proceedings that it was the school environment that caused to have such anxiety. The District was not recommending a return to the District at that time.
The parent had already seen (Tr. 1372) during 's second week at . I find that the parent wanted to place him at . However, the District is not obligated to place a student at the best place or a place of the parent's choosing. It is also unclear if the parents had shared with the team at the time of the meeting, that they had visited . I find that home instruction was an appropriate interim recommendation.
I find that even though it was reasonable for the District to have requested additional information, they started the whole process too late. I find that the District who was well aware of 's admittance to should have immediately held an emergency meeting and at that point requested the additional information. The District provided explanation as to why the next meeting did not occur until February. However, I find that had the District acted sooner in the first instance, the process would have begun long before February. As it turned out, had the parent accepted home instruction, this would have gone on for too long a period to be considered appropriate.
On February 12, a CSE meeting was held and and the Committee recommended a referral to out of district placements.(J Exhibit 70) In addition to home instruction the team offered as an interim placement. This was described as a thirty day program at that time with small group instruction and therapeutic support. Ms. acknowledged that it is for students in acute emotional crisis. She went on to explain that it is also for students who are reentering the community from a hospital or residential placement so they can receive a short term transitional system. (Tr 205) I find that in February did not fit into any of those categories. I find that may have been an appropriate recommendation in December but was no longer appropriate.
I find that the program recommended on the IEP was appropriate. The Director of attended the IEP meeting not only to discuss 's progress but also to participate in the goals and creation of the IEP.
The issue centers around placement. It is undisputed that the team never reconvened for the 2012 -13 school year. Ms. acknowledged that there were other placements that the CSE could have recommended in addition to the two that the parent been recommended. The District was on notice that the parents disagreed with the recommended placements.. I find that the failure of the CSE to reconvene to address the parent's concerns to recommend another placement establishes a denial of a FAPE for the 2012-13 school year.
I will discuss prong two with respect to both years.
With respect to prong two began attending School on January, 3 2013. (Tr. 1711) They address students' emotional and academic needs simultaneously through a regular academic curriculum with therapy built into the program. (Tr. 1701) They are not New York State approved. (Tr. 1706)
They serve students with social and emotional issues and have students from grades six through twelve. There are six students in the middle school who are basically seventh and eighth graders. The core teachers are certified. There are approximately fourteen or fifteen teachers and three therapists. Class size usually consists of two to six students and classes are from 9AM to 3:30 PM. (Tr. 1703-1705)
The average length of stay for a student is two and a half years and their goal is to mainstream the students so they can return to a typical setting. (Tr. 1705)
The parent visited the school and then spent a few periods with them prior to his acceptance. They have an intake interview.(P Exhibit JJJJJJJJ) They review the child's needs and his school records. They would not take an applicant without first meeting a child. The parents signed an enrollment agreement on January 3.
was placed in the middle school for English, math, science and social studies. There were under six students in his class who were all there for emotional and social reasons. Academically was functioning but leaving the classroom a lot to go to the bathroom very frequently. He was a little disorganized and nervous. The director described his anxiety as “so pervasive" (Tr. 1714)
There is an after school club that can either be used for academic support or for socializing with other students. participates in the club every day. The after school club has different activities that is supervised by a teacher. They work on homework first and then play. They work on his social skills. There are different activities under a teacher's supervision. She likened it to “play therapy”(Tr. 1759)
had poor graphic skills, but was fine in reading and slightly below average in math. He was obsessed all day about gym. He was very anxious about any change in schedule or movement like going to the gym.
participates in a bi-weekly student support period with his therapist, Dr. . (Tr. 1731) and in group therapy with 's director, who is a licensed clinical psychologist.. (Tr. 1731) His teachers provide him with a lot of support and redirection to address his anxieties. (Tr 1720) He attends an academic support period, similar to a resource room in a public school. (r. 1727) He is provided with a great deal of support during this period to complete the assigned work. (Tr 1727) They differentiate instruction, break down and go over assignments and check for understanding. (Tr at 1730, 1742, 1839)
He does not require a shadow aide because there is always teacher in room, (Tr. 1743) He does not required a behavior plan. (Tr 1745) He has a graphic organizer to help him maintain his homework and to keep track of his assignments, He has the use of a calculator and a place to store his stuff,
There is adult intervention when working on a group task. The teacher directs the group and supports him. They chunk the work and break it down into smaller parts. (Tr 1745)
Ms. works with the core teachers and then works with the kids to do the assignments and homework with a lot of support. The director described it as similar to resource room in a public school. She explained that at that time homework made very anxious.
They provide him with academic support period three to five times a week. They created a plan for him in order to provide academic support.. They provide him with the adult support requires to modulate himself if he is upset. (Tr 1740)
's grades are based on what he is able to do as well as on his performance and effort. (Tr. 1731) He receives modified grading. (Tr 1745, 1805, P Exhibit PPPPPPPP) .They follow New York State curriculum and the common core. (Tr. 1732, 1802)
Ms. , the academic director and assistant director of administration at , attended the CSE meeting in February 2013. (Exhibit 70) They are working on his goals. At the beginning of his stay he would come to adults for support once or twice a day. Now he come once a week. was able to work on the goals that were discussed at the meeting. (Tr. 1734) She opined that needs a lot of adult support to get him “unstuck” in his emotions to he can be open to learning She opined that responded well to small class size.
Ms. recalled that bathroom issues “dissipated quite quickly.” (Tr. 1715) He responded well the the small class size and developed friends. (Tr 1716)
Ms. opined that has made progress in seventh grade across the board. He stayed after school to participate in a club. He is a more independent learner, taking less breaks, needed less adult intervention, has become more organized, and has more control over his academics. His anxiety has lessened. He attended gym at the annex the whole of last year. She opined that he made progress towards his goals. He used his graphic organizer regularly, able to write more and has made progress with multi word problems. (Tr. 1748-1750) He was attending physical education twice a week. He made improvements in his grades, in his executive functioning, and in his organization. She recalled that his social and emotional functioning had improved. He came to see her in much less. He connected with the other boys. She had observed a definite increase in his interaction with other children. He can have a break whenever he needs it and the need diminished as the year went on. She shared with the team that he had made friends and his anxiety had dissipated a bit. (Tr. 1761)
began eighth grade as on September [5]. Physical education had moved from an annex to the Y. required less assistance from Ms. except for gym. He still attends academic support four to five times a week. They work on homework assignments and maintaining his planner. He attended all classes and received all related services.
There are six students in his class grade seven and eight and they all have social/emotional needs. still requires long term assignments broken down. He receives modified homework assignments as do the other students. (Tr. 1788) He still used graphic organizers but takes breaks “much less so” (Tr 1789) He goes to the bathroom much less frequently and does not escape the classroom very much at all (Tr 1790) He still participates in the after school program for an hour a day.
Ms. opined that in 2013-14 school year he has made progress with interaction with peers. He stands up for himself, he is more assertive.
described as a place where is “really, really.”happy. (Tr at 1412) Writing continues to remain an issue. (Tr 1731) He is learning how to advocate for himself. (Tr 1412) He has made friends and attends play dates. (Tr.1413) His home life has also improved. He no longer smashes doors rips or rips up paper.
Department argues that there is no evidence that made social or emotional progress. They point out that there is a lack of collection of data, written reports to support parent's claim of progress. I agree with the Department that written reports are always helpful in determining progress. However, in this case the evidence provides numerous examples of 's anxiety prior to his attending The parents detailed to the school in emails, and at the hearing what had been like at home. I find that their testimony and description as to improvements in are sufficient detail of the emotional progress that he has made. Mom said he was doing “amazing well at home “(Tr. 169)
In addition, there was testimony from his therapists about his emotional improvements. Dr. stated that at the end of his seventh grade “I thought he was doing well.” had expressed to him that he was happy about being at . He opined that for a student like the fact that he had made friends and was able to sustain that friendship outside of school as “immense progress”. (Tr 1883) had been isolated by his anxiety which seemed to be alleviated over time.
There was testimony that in 2013-14 school year has made progress with interaction with peers. He stands up for himself, he is more assertive. There was also testimony about friends that has made and social improvements.
There were other kids are like him and Dr explained that this “Enhanced his self esteem” (Tr 1884) He works with on the goals on his IEP. He opined that made progress towards his social emotional goals, eight through twelve during the 12-13 school year. (Tr 1887 ) He opined that the small classes reduce anxiety.(Tr 1890
With respect to grade eight,Dr. opined that L made genuine improvement in eighth grade both interpersonal and personally. (Tr 1891) was less rigid and able to monitor himself which he described as “hugely important” (Tr 1892)
L had just been released from where he had had success after a very disturbing incident. It was upon their suggestion that the parents decided to look at
Dr. stated that based on conversations with the school they they provide the kind of services to children that have similar needs. (Tr. 908)
I find that provided with the type of environment that he required at that time. I find that the evidence is undisputed from people who provide services to and who have observed that he has made progress socially and emotionally. Both parents describe the positive change they see in at home. I find that provided with the type of supportive environment he required to feel comfortable and to ease his anxiety. I find that the small class size and his being with other students who present as similar to him contributed to his progress.
The Department argues that there is no evidence of academic progress. With respect to academics, I agree with the Department, that standardized testing would be an easier way to determine progress. However, the fact that there is no standardized testing is not in and of itself a determining factor.
The District points out that the grades reflect effort and participation. I find that in light of the fact that had only been at for one month when the seventh grades were issued that this is understandable . However, I am more troubled about the evidence surrounding 's academic progress in his eighth grade. I agree with the Department that there is limited information regarding 's progress.
The grades are not based on any standardized testing, which although not a requirement, makes the need for other testing that much more important. There is no information about any of the circumstances surrounding the work samples and I find they are of little probative value.(P Exhibit PPPPPPPP) The Director could not testify whether the work samples provided were performed independently or with support. I find it difficult to undertake any analysis that would delineate L's academic performance. However, the appropriateness of the unilateral placement does not turn on academic progress. Ms. , did not exclude his performance on their basis for grades. It is based “on what he was able to do and his performance.” (Tr 1771) In eight grade 's writing becoming a bit more fluent. (Tr 1776) I find that even if 's grades are partially based on effort, his A and B grades leads one to conclude that he is making academic progress. There is no question that made progress emotionally and socially in grade seven.. I find that the evidence established that his anxiety was such that it interfered with is learning. I find that knowing that was in a place where his anxiety was reduced, where he was happy, where he was confident would lead parents to expect that this would lead to academic progress.
At the beginning of eight grade 's parents had seen make progress at . I find that the evidence establishes that continued to make progress in the setting. I find that the program is individualized to support 's needs.
I find that that provides with the small, supportive environment that he requires.. He receives both individual and group I find that the testimony from his parents who were the ones who witnessed first hand 's struggles, anxieties, and unhappiness, establishes that has made social and emotional progress.
I find that the fact that the bathroom issues which were caused by anxiety and not any medical reason, having dissipated is also very telling about his emotional progress. I find the fact that has made real friends and no longer has issues with other students to be telling of his emotional and social progress. I find that these parents who are so involved and concerned with every aspect of 's education would not have had remain at in grade eight if the progress was not genuine. I find that the evidence, including the testimony from his parents who are in the best position to evaluate his emotional progress establishes progress.
I find that looking at the totality of the circumstances is an appropriate placement. I find that the parents unilateral placement for both grade seven and eight including the after school program were reasonably calculated for to make progress. I find that the parents met their burden under prong 2.
With respect to prong three for the 2011-12 school year, I find that the equities do not completely support the parents. ]In this case the parent placed the student at the unilateral placement prior to any IEP meeting. It is unclear if they advised the CSE at the time of the meeting that they had been to .
The Parent argues that their not attending the intake is a “red herring” I disagree . In this case the evidence from Dr. is clear that they could not offer the placement without attending the intake. The District cannot make a place accept a child. They can only send out the packets and then it is up to the school and parent to determine if there is an appropriate placement. Dr. credibly testified that she explained this to the parent who said she would think about it and discuss it with Ms. . The parent never got back to anyone. (Tr. 170) “She would think about it and get back to if she would like an intake” (Tr. 1095) She recalled specifically notifying her that had to attend. (Tr 1100)
The Parents expressed concern about bring to an intake. The Parents had brought to an intake at when he was still attending . Clearly he was in a much more fragile state that time. The Parents understood that this was necessary. I find that when the parent was genuinely interested in a program they did bring for an intake.
The Parents had always provided consent for evaluations. However,, at the February meeting, they declined to allow the District to conduct an educational evaluation. (Tr. 162)
Dr. testified that he did not think it would be in 's best interest to attend intake. He described it as having “very little upside to that and potentially a lot of downside” This was based on the fact that he was doing well at . The District is not obligated to send to even if he is doing well. The District is obligated to find an appropriate placement in the least restrictive environment.
Parent argues that Dr. 's description of how they would have implemented the IEP is speculative. However I find that any of the parent's concerns regarding the school equally speculative. Dr. testified that “she explained to the mother”that without an intake, we could not assess as to which program would be best served, by, whether he was, in fact, appropriate for any BOCES program. (Tr 1085) She described how they individuate a program for each student. She denied making the claims that were alleged by the parent.
With respect to a description of the individual schools Ms. stated that they were State approved school that had an academic rigor and a therapeutic component. (Tr 182) I find that that the program recommendation was appropriate. The District provided the names of therapeutic placements. The whole purpose of the intake would have been to decide if it was appropriate for and if they could implement his IEP. Parent had an opportunity to find out all the details at the time of the visit. I find that the District was not responsible to provide specific details of each place to whom they were sending packets.
I find that the parent failed to comply with the intake process. I find that she had been made aware at least by Dr. that an intake was required. I find the equities warrant a reduction of twenty five per cent.
The Parents argue that the District denied L a FAPE for the 2013-14 school year.
With respect to prong one for the 2013-2014 school year, there was no evidence from the District that they ever sent out packets for the 2013-14 school year. The only time this is addressed is with respect to the March meeting. I find that the District had an obligation to send out packets for the 2013-14 school year in time for the beginning of the year. The District blames the parents however, this speaks to the equities. I find the fact that the parent did not attend the interview for the prior year is not justification for the District to not have sent out packets. Circumstances change from one school year to school year. There was testimony at the July IEP meeting that had made progress. It is possible that he would be a better fit for one of the the other schools that had rejected him in the past. It is possible that there was a placement that now existed that was not available during the prior year. I find that the District had to begin the process again for the 2013-14 school year.
With respect to the program, I find that any analysis made for the 2013-14 school year must take into account that changes in . At the time of this meeting had completed several months at . Ms. had provided input at the meeting about his progress. I find no evidence to support that was in any type of crisis. The other problem with the interim recommendation is at the phrase suggests it is only an interim placement which means not only moving from his present environment to another environment but also at least moving him one more time to the final environment. It is also unclear at how long a period this “interim” program would be in effect. As it turned out in this case, there still has been no final placement recommendation. Given s history with anxiety and issues with change, and based on the fact that was not in crisis, I find that would not have been appropriate.
There were allegations that was hostile at the interview and as a result the intake could not be completed. did not hide the fact that she did not want to attend the interview. The interview was never completed, regardless of the reason, and it is undisputed that was not willing to return. However, this does not alleviate the District's failure to provide an appropriate program. I agree with the parents that was not appropriate.
Unlike the prior year, the District knew in advance of the 2013-2014 school year that would require an out of district setting. I find that they should have attempted to begin the process earlier and at least make the effort to avoid an interim program. The District relied on the one potential placement from the prior year. I find that the District failed to offer a FAPE to for the 2013-14 school year.
For purposes of a complete record, I will address the IEP itself. There are no allegations made by the parents that it was not appropriate. As the District pointed out, Ms. from was involved in the reviewing of goals, program modifications and testing accommodations. I find that the IEP was appropriate.
There was much discussion on the last day of hearing surrounding admitting evidence of a March meeting. The District argues that part of the meeting was to address the reminder of the 2013- 14 school year as well as the upcoming 2014-15 school year. After much debate on the record about what the meeting was about and after listening to both sides present arguments I decided not to submit the evidence. (Tr. 1978-2012) I did however, make certain findings based on the testimony. Clearly the District had not sent out packets prior to the March date. They offered to send out packets again (Tr 1852) The District point out that this is relevant for prong 1. However, I find that any recommendation for the 2013-14 school year that would be made in March is untimely to establish that the District provided a FAPE. I agree with the Parents that it is totally unreasonable to wait until March to send out packets for the 2013-14 school year.(Tr. 1852)
I find that the District failed to provide a FAPE for the 2013-14 school year.
However, with respect to prong three, I find that the equities in this case do not favor the parent. It was very obvious that the IDT program was an interim program. One of the reasons the parents gave for rejecting the program was based on having to move back and forth when a placement was secured. Given that this was a temporary placement I find that the parent's rejecting the District's program was premature. For the prior school year, the parent made the argument that they were unaware that had to be brought to intake. At the time of the meeting Ms. made it very clear that they had to bring to the intake. They were specifically asked if they were willing to do so and replied that they would have to discuss it with 's Doctor. “we'll certainly consider it but we'll have to talk to his doctors,” They never got back to the District. I can find no justification for the parent not taking to the intake at this point in time. I find that the parents were now well aware that they had to bring to an intake. As the parents pointed out he was no longer in crisis. As in the discussion for the 2012-13 school year, the Parents took to when he was still at in a much more fragile state.
In summary, I find that the District offered a FAPE to for the 2011-12 school year and the parent is not entitled to reimbursement for outside services. I find that the District failed to offer a FAPE to for the 2012-13 school year. I find that the equities warrant a twenty five per cent reduction. I find that the District failed to offer a FAPE to for the 2013-14 school year. I find that was appropriate for the 2012-13 school year. I find that the equities warrant a fifty per cent reduction in the tuition reimbursement. 5 I find that the appropriate remedy for the denial of FAPE for both the 2012-13 school year and the 2013-14 school years is tuition reimbursement. I find that the Parents are not entitled to reimbursement for outside services.
ORDER
The District shall reimburse Parents for 's attendance at during the 2012-13 school year, including the after school portion, upon evidence of contract, payment and attendance. The total amount shall be reduced by 25 per cent. The District shall reimburse Parents for attendance at during the 2013-14 school year, including the after school portion, upon evidence of contract, payment and attendance. The total amount shall be reduced by 50 per cent.
May Sharyn Finkelstein Esq. IHO
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 with 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
[1] On September 18, 2013, Mr. informed me that he would be representing the District.
[2] (“Parent) made every effort to attend the hearings. If he absolutely could not attend, ( “Parent”) appeared. On many occasions they both appeared at the hearing. The last hearing date required to testify and I granted certain extensions due to his unavailability. I find that this was for reasons out of his control. 2
[3] The District did an exhaustive search of their records and did not find any such document. Dr. could not find any such evidence. The parents could not find any such document. 3
[4] In her brief counsel for Parent refers to December 12, 2012 meeting. This is obviously a mere typo. 24
[5] I find that the circumstances were different this school year from last school year which led me to reducing the award by different amounts. It was clear in the 2013-14 school year that the parents had to attend the meeting and it is clear that they never got back to the District. I also find that this year they rejected a program which they knew was interim. I find it that they had no intention of considering the removal of from 36