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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: April 18, 2013
May 13, 2013
July 18, 2013
August 15, 2013
September 9, 2013
Actual Record Closed Date: November 16, 2013
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Attorney DOE 04/18/13 05/13/13 07/18/13 08/15/13 09/09/13
(T) Principal DOE 07/18/13
(T) School Psychologist DOE 08/15/13 Attorney PARENT 04/18/13 Attorney PARENT 05/13/13 07/18/13 08/15/13 09/09/13
Father PARENT 07/18/13 08/15/13 09/09/13
Mother PARENT 07/18/13 08/15/13 09/09/13 Observer PARENT 07/18/13 08/15/13 09/09/13
(T) Director PARENT 08/15/13
Dr. (T) Clinical Director PARENT 09/09/13
(T) Residential Director PARENT 09/09/13
On December 14, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute between the Parents of an ( old student attending a private school and the New York City Department of Education (“DOE”) - District , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted on consent or for cause, the hearing was held on April 18, 2013, May 13, 2013, July 18, 2013, August 15, 2013 and September 9, 2013. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
The Parents herein allege the student was recommended for a private school placement in his Individualized Education Program (“IEP”) dated June 5, 2012. (See Parents’ Due Process Complaint - “DPC”) The Parents further argue that the student’s June 5th IEP is procedurally and substantively flawed. (Id.) Accordingly, the Parents have unilaterally placed the student in a private school of their choosing and seek tuition reimbursement for the student’s tuition, room and board, transportation and related services thereat for the 2012-2013 school year. (Id.)
THE DOE’S CASE
The DOE argues that the student attended an approved private school for the 2012-2013 school year. (T-30) The student’s IEP was created on April 3, 2012 and then “finalized” on June 5, 2012. (Id.) The student was classified as having an “emotional disturbance” with an overall cognitive level within . (Id.) The student’s main issues are his , his . (T-31) The student’s IEP recommends a 12-month New York State approved residential school. (Id.) Overall, the DOE argues that it offered the student a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year. (Id.)
The DOE called (2) witnesses to testify and submitted (23) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is included in the decision below.
THE PARENT’S CASE
The Parents waived and ultimately declined to make an opening statement. (T-334 & 207) The Parents’ position in this case is gleaned from their DPC summarized above.
The Parents called (4) witnesses to testify and submitted (22) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parents’ case is included in the decision below.
FINDINGS OF FACTS & DECISION
IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) 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(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)
The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))
The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))
The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)
Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:
Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-
102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-
049).
As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington, supra)
In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
I first turn to the question of whether the DOE offered the student a FAPE for the 2012-2013 school year. The Parents argue that the DOE has failed to show that the New York State approved residential school it recommended is appropriate for the student. (P-
X) Relying on R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2nd Cir. 2012), the DOE argues that speculation about its recommended placement was not an appropriate basis for the Parents’ unilateral placement, because the Parents did not actually enroll the student in the recommended school. (D-24)
As recently explained, "[t]he Second Circuit has been clear, however, 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]; see N.K. v. New York City Dep't 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 Parents in this case enroll the student at his current private school on June 30, 2012, literally just days before the student’s 12-month school year was to begin. (P-D)
The Second Circuit has also made clear that just because a district is not required to place implementation details such as the particular school site or classroom location on a student's IEP, the district is not permitted to choose any school and provide services that deviate from the provisions set forth in the IEP. (see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [district does not have carte blanche to provide services to a child at a school that cannot satisfy the IEP's requirements]) The district has no option but to implement the written IEP and Parents are well within their rights to compel a non-compliant district to adhere to the terms of the written plan. For the Parents in this case to have been able to do so, they required access and information about the recommended DOE school.
The Parents allege that they were not given any information about the residential school. (T-437-9) The Parents also argue that there is no authority in the law for the Committee on Special Education (“CSE”) to defer its program and placement authority to the Central Based Support Team (“CBST”). (P-X) The recommended DOE school did not confer with the Parents or the student and last observed the student in the Fall of 2011. (T-56, 70-1 & 90) The recommended DOE school also did not confer with the student’s current private school. (T-90 & 101) The Parents assert that the DOE school accepted the student nine days after receiving his CBST package and without communicating with anyone. (T-75, 440, 443, D-6 & P-K)
The Principal at the recommended DOE school testified as follows concerning the decision to accept the student for the 2012-2013 school year:
At this point, we already had had a prior application from the year before.
So when the referral came in again this year, the packet was again reviewed. The team met and discussed that he had already been observed when they went to [student’s current private school] that we didn’t need any further information. That his profile continued to be stable and that this was still an acceptable placement for him. (T-84)
State regulation requires that children in special education classes be appropriately grouped using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children. (8 NYCRR 200.6 [a][3]) The similarity of abilities and needs may be demonstrated through the use of a profile of a children's proposed class together with the testimony of a witness who is familiar with the children in the proposed class. (SRO No. 93-13 & 94-5) However, the absence of a complete profile is not dispositive of the grouping issue, if there is sufficient testimony in the record to establish that the child would be appropriately grouped with the other children in the recommended class. (SRO No. 93-40 & 90-10)
In this case, the CSE District Representative testified that she called the recommended DOE school at the June IEP meeting in the absence of the Parents for more information. (T-187) No other information other than that the DOE school had accepted the student the previous year, was related to the District Representative. (T-188) Even the Principal of the recommended DOE school conceded that the student IEP did not have sufficient information as to what program the student required. (T-58 & 95-6)
On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016) Thus, the DOE had the burden to prove that the student would have been appropriately grouped at the recommended DOE school. No such evidence was offered in this case. Accordingly, I must find that the DOE failed to meet its burden, and as such, failed to offer the student a FAPE for the 2012-2013 school year.
I next turn to the question of whether the student was appropriately placed at his current private school for the 2012-2013 school year. Here the Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112 and Frank G., 459 F.3d at 364-65)
The student in this case is described and diagnosed with , , and a . (T279, 361, 428, D-8, D-9 & P-Z) At the student’s April 3, 2012 CSE meeting, it was agreed that the student requires a residential therapeutic placement. (T-149 & D-3)
The student’s current private school’s philosophy is to create a small environment academically and residentially for the students to learn not only academics, but also skills related to self-regulation and self-reliance and to prepare them to be as independent as possible as contributing members of society. (T-217) The school prepares students for both college and vocational pursuit with over (40) job sites in the community to help student either in job shadowing, job coaching and competitive employment. (T-217-8) The school accepts students as young as (5) and as old as (21) in pre-k through 12th grade program with a post-graduate transition program. (T-213) Fifty-five percent of the students are on and some suffering from depression. (T-213-4) About 70% of the students have typically three or more diagnosis. (T-214) None of the students have aggressive or conduct disorders. (Id.) Out of the (76) students enrolled in the school for the 2012-2013 school year, (40) were residential students and the rest were day students. (T-216) The students cognitive levels as far as the full score IQ is (70) and over and usually in the (90) to (100) plus range. (T-215)
The student was placed with other students according to their skill level, daily living skills, emotional regulation, and level of independence, age and compatibility. (T238, 258, 319-20) The student has developed a . (T-325) His attention has improved and he is better at receives. (Id.) The student is said to have mastered the basics of daily living skills. (Id.) of the student’s primary concerns. (T-332) However, over the course of the 2012-2013 school year the student progressed in the area. (T-332) He has improved his order to consider to get people to agree with him. (T-332-3) The school reports document the student’s progress. (P-I, P-L, P-O & P-Q) The private school fits the student’s profile and has the resources to permit him to benefit from instruction. (Gagliardo and Frank G., supra) The student has also progressed at the private school. For all of the reasons above, I find that the student’s private school placement for the 2012-2013 school year was appropriate.
There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parents attended the CSE meetings, provided access to the student’s private school officials and reports, visited the recommended DOE school and served notice of the student’s unilaterally placement at his private residential school. (Supra) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parents. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parents and that they have met their burden under Schaffer to prevail in their request for tuition reimbursement.
NOW therefore, it is hereby
ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parents and/or pay for the costs of the student’s tuition, room and board, transportation and related services at his private school for the 2012-2013 school year. Dated: December 2, 2013
_____________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer EDL:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with 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 RECORD
Number/Letter Title Dated For # of Pages
01 IEP 06/05/12 DOE 16
02 IEP Meeting Notes 06/05/12 DOE 01
03 IEP Attendance Page 04/03/12 DOE 01
04 IEP Meeting Notes 04/03/12 DOE 09
05 FNR 06/05/12 DOE 01
06 Acceptance Letter 04/05/12 DOE 02
07 Social History 03/20/12 DOE 02
08 11-12/2011 DOE 18
09 Progress Report 03/29/12 DOE 02
10 Learning Clinic Report 2011-2012 DOE 12
11 Residential Student Report 02/12/12 DOE 07
12 Residential Student Report 11/14/11 DOE 08
nd
13 2 Qtr. Progress Report 01/20/12 DOE 07
14 Progress Report 01/28/12 DOE 03
st
15 1 Qtr. Progress Report 11/04/11 DOE 07
16 Behaviors Observed 11/08/10 DOE 03
17 Learning Clinic Report 09-11/2011 DOE 16
18 Extended School Day Report 09-11/2011 DOE 02
19 Graphs 04/02/12 DOE 09
20 Performance Levels 04/30/12 DOE 06
21 Chart undated DOE 01
22 DPC 11/14/12 DOE 02
23 Waiver for Parent Member 03/06/12 DOE 01
24 Closing Statement 10/24/13 DOE 21
A Due Process Response 11/19/12 PARENT 04
B Amended DPC 02/26/13 PARENT 03
C Amended DPC Response 02/28/13 PARENT 04
D Enrollment Contract 06/30/12 PARENT 03
E Affidavit of Payment 02/15/13 PARENT 01
F Proof of Payment various PARENT 16
H Learning Clinic Report 09-11/2012 PARENT 15
I Readiness Progress Report 11/21/12 PARENT 07
J Residential Student Report 01/20/13 PARENT 12
K Learning Clinic Report 2012-2013 PARENT 12
L Readiness Report 01/15/13 PARENT 08
M Residential Student Report 04/09/13 PARENT 18
N Learning Clinic Report 01-03/2013 PARENT 12
O Readiness Progress Report 03/28/13 PARENT 06
P Residential Student Report 06/24/13 PARENT 23
Q Readiness Progress Report 06/24/13 PARENT 06
R Curriculum Description 2012-2013 PARENT 32
S Daily Schedule 2012-2013 PARENT 07
T Subsequent Treatment Plan 01/29/13 PARENT 13
U Learning Center Model undated PARENT 02
V Program undated PARENT 04
W Description undated PARENT 08
X Closing Statement 10/24/13 PARENT 25