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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: October 21, 2013
December 18, 2013
Actual Record Closed Date: January 14, 2014
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2013
Advocate — Student
Mother — Student
of Education Representative — DOE
(Via Telephone) — DOE
Principal (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 18,
2013
Advocate — Student
(Via Telephone) — Parents
ademy (Via Telephone) — Parents
(Via Telephone) — Parents
(Via Telephone) — DOE
The parents of filed a request for an impartial hearing on July 16, 2013, seeking funding for placement at the for the 2012-2013 school year.
I was designated to hear this matter on July 17, 2013, pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on October 21 and December 18, 2013. The compliance date was extended on four occasions, due to the unavailability of witnesses, and the extensive testimony and issues. The final compliance date is January 28, 2014. (IHO Ex. II, III, IV, V).
is a year old student with a classification . (DOE Ex. 1).1 His classification is not in dispute. (Par. Ex. A). He has attended the for the years. (Tr. p. 171). Department of Education (“DOE”) Position
The DOE’s position that it satisfied the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and that the proposed placement would have been able to meet ’s needs. The DOE also argues that the recommended program is inappropriate because the student has not made meaningful progress, and that equitable considerations do not favor the parent. (Tr. pp. 7-9).
On April 26, 2012, the Committee on Special Education (“CSE”) met to recommend a program for for the 2012/2013 school year.
Parent’s Position
The parents’ position is that the April 26, 2012 IEP is inappropriate because it does not address ’s extensive needs. The parents also maintain that the recommended site is inappropriate because it serves students who are than . (Tr. p. 11).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).
An appropriate educational program begins with an IEP that accurately reflects the results of 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 Student with a , Appeal No. 11-162 (citations omitted). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997).
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21 (citing 8 NYCRR 200.4[d][2][iii]).
Although the majority of the goals in the April 26, 2012 IEP are appropriate and consistent with ’s needs, as described by his teacher and service providers, the
At the start of the 2012-2013 school year, years old. (Tr. p. 128). postsecondary goal of exploring part-time employment in the community with a job coach is inappropriate for , who
For the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of the April 26, 2012 IEP. Recommended Site
I find that the DOE failed to demonstrate that the April 26, 2012 IEP could be implemented at the recommended site. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). I
For all of the foregoing reasons, I find that the DOE failed to prove the appropriateness of the recommended program. Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir.
2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).
I find that the parent demonstrated that the provides with an appropriate educational program designed to meet his unique needs. is Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
Tuition reimbursement may also be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement, including stating their concerns and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sec. 1412[a][10][C][iii][I]; Application of the BOARD OF EDUCATION, Appeal No. 08-084. The purpose of the notice requirement is to give the district a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District. J.S. and A.G. v. Scarsdale Union Free School District, 111 LRP 73958 (U.S.D.C, S.D.N.Y., 2011) (citing W.M. o/b/o O.M. v .Lakeland Central School District, 783 F. Supp. 2d 497 (U.S.D.C., S.D.N.Y. 2011).
The record indicates that the parent participated in the CSE review, went to view the proposed site, and communicated her concerns regarding the recommended site and her intention to enroll at the in her letter to the CSE dated June 18, 2012. There is no indication that the CSE ever attempted to remedy the parent’s concerns.
The record contains contradictory information about the tuition owed by the parents. While the tuition contract states that the annual tuition is $95,000; the affidavit in evidence states that the amount owed by the parents is $85,000. I find that the latter amount ($85,000) is reasonable, taking into account the small class size, and the specialized nature of the instruction provided. The parents demonstrated that they were unable to pay the tuition and seek reimbursement.
Order
Therefore, it is hereby ordered that the DOE shall directly fund ’s tuition for the 2012-2013 school year, by paying $85,000.00 directly to the . Dated: January 21, 2014
____________________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request dated July 16th, 2013, 5 pages B Program Description, undated, 1 page C dated August 27, 2012, 16 pages D Final Notice of Recommendation with Notations dated June 6, 2012, 2 pages E Ten Day Notice dated June 18, 2012, 2 pages F Class Schedule dated December, 2013, 1 page. G Progress Report dated December, 2013, 9 pages H 2013-2014 Annual Review Report, 15 pages I Enrollment Contract dated September 1, 2012, 3 pages J School Affidavit dated October 3, 2013, 1 page K 2012 Income Tax Return, 2 pages
DEPARTMENT OF EDUCATION
1 dated April 26, 2012, 13 pages 2 dated April 11, 2012, 7 pages 3 Final Notice of Recommendation dated June 6, 2012, 1 page 4 CSE Minutes dated April 26, 2012, 1 page
HEARING OFFICER
I Pre-Hearing Conference Summary dated August 21, 2013, 1 page II CFU with attachment, 8/20/13, 2pp III CFU, 10/21/13, 1pp IV CFU with attachment, 12/14/13, 2pp V CFU, 12/18/13, 1pp