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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent
Dates of Hearing: August 21, 2013
September 18, 2013
January 7, 2014
March 20, 2014
April 14, 2014
Actual Record Closed Date: June 12, 2014
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 21, 2013
Attorney — Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18, 2014
Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2014
Attorney — Parents
Mother — Parents
Parents
Parents
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2014
Attorney — Parents
Mother — Parents
) — Parents
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 14, 2014
Attorney — Parents
Attorney — DOE
Office of Pupil Transportation — DOE
On August 21, 2013, September 18, 2013, January 7, 2014, March 20, 2014 and April 12, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated July 25, 2012. (Ex. A) I was appointed Impartial Hearing Officer on July 26, 2014. I was available to conduct a hearing within 14 days of appointment. At a prehearing conference held on August 14, 2013, hearings were scheduled for August 21, 2013 and September 18, 2013. (Ex. I) The August 21, 2013 hearing was limited, at the request of the parties due to the unavailability of witnesses and the complexity of the matter, to the parent’s request for an order concerning the student’s pendency period entitlements. (T. 3) By pendency order dated August 22, 2013, the following was provided from July 25, 2013:
1) Prospective payment for tuition at the School;
2) Prospective payment, at (Ex. G)
A data entry error occurred with regard to the scheduling of the September 18 hearing and as a consequence, although the parent was prepared for the commencement of the hearing at that time, the district did not appear. (T. 14-16) Additional hearing dates were thereafter scheduled during the course of the hearing.
Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the 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 of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written Case No. 145688 decisions concerning the extensions was provided. (T. 23-24, 225-226, 231, 454-456, 461, Ex. II)
The current compliance date is June 21, 2014. The record closed on June 12, 2014, upon my receipt of all closing submissions. (Ex. VI)
Background and Positions of the Parties
The student was almost old at the commencement of the 2013-2014 school year and had the . That classification is not in dispute. The parent alleged that the DOE failed to develop an appropriate program and failed to recommend any placement for the 2013-2014 school year. (T. 29-30, Ex. A) Accordingly, the parent asserted that the DOE failed to provide a FAPE. For the past many years the student had attended the School (“”), a private school which is not approved by the New York State Education Department as a school with which the DOE may contract for the provision
The DOE concedes that it did not provide a FAPE for the 2013-2014 school year. It claims, however, that the requested relief is not appropriate. Further, it claims that the parent has not met her burden of proof with regard Cases Presented
A list of documents entered into evidence is appended.
The parent presented the testimony of the following witnesses:
The DOE presented the testimony of
(“”)
’s testimony included the following:
She is the program director at and
Mother (“the parent”)
The parent’s testimony includes the following:
The student has made progress in the combined program prior to June 2013 and thereafter. (T. 423, 436) His Case No. 145688
The parent participated in the 2013 review. (T. 425) She has participated in every meeting requested by the DOE and has given consent whenever the DOE has requested it. (T. 425-426) The parent was willing to consider programs recommended by the DOE.
(T. 426) By June 14, 2013, she had not received a program recommendation from the DOE nor had she received an IEP. (T. 427) She informed the DOE by letter of her intention to place the student at in the absence of an appropriate program recommended by the DOE but never received a response. (T. 427, Ex. D) She paid a non-refundable deposit to on June 19, 2013 but would have given that up if the DOE had recommended an appropriate program and placement. (T. 433-434 Exs. N, O)
With regard to student transportation, the parent testified that DOE has provided that for the 2013-2014 school year. (T. 428) She stated that the
Findings of Fact and Conclusions of Law
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998) Case No. 145688
Prong 1
The DOE has conceded that it failed to provide a FAPE. (T. 40, 47, 121)
Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
I find the testimony of the witnesses with regard to the program provided credible in that they testified in accordance with their recollections and accurately stated their opinions. I find that the evidence shows that coupled with provides education that is attuned to the with respect to , that the student I appropriately grouped at the school and that support services necessary are provided. Further, I find that the effectively in coordination with and that both programs are individualized for this student. Case No. 145688
I note that the DOE has made various claims with regard to the appropriateness of the program provided. My determination was made after consideration of those claims. With regard to them I find as follows:
I find any inconsistencies between the testimony of the witnesses and/or the documentary evidence presented concerning the student’s progress and program insignificant in view of the extensive testimony and evidence in issue and the fact that the student has an extensive history in the program requested. The inconsistencies alleged are not of sufficient weight to undermine my determination with regard to credibility or persuasiveness.
The DOE asserts in its discussion of various services ( However, the evidence is persuasive that those determinations were based on professional judgments of qualified staff. I note that the DOE presented no testimony or rebutting evidence to support a conclusion that those judgments were unreasonable or otherwise not appropriate for this student.
The DOE asserts that the program is not appropriate because inconsequential progress in the 2013-2014 school year has been shown in important areas Although progress is not required for a determination that a parental program is appropriate, it is a factor for consideration. Gagliardo, 489 F. 3d at 115. I note with regard to this claim that progress that appears inconsequential for a typically
The DOE asserts that is an inappropriate school placement because it is too distant from the parent’s home in view of the student’s parentally alleged transportation needs. The parent’s request for appropriate transportation is addressed below. However, with regard to the effect of transportation difficulties on a determination as to the appropriateness of a placement, I note that it is well established that a parental placement need not be perfect.
Accordingly, I find that the parent has met her burden to establish that the unilateral program selected was reasonably calculated to enable the student to achieve meaningful educational gains. Case No. 145688
Prong 3
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). The DOE has the burden of proof with regard to equitable considerations. Educ. Law 4404 [1][c]
In the instant matter the DOE has not claimed a lack of cooperation by the parents. Nor, I find, would the evidence support that claim here. Rather the sole claim asserted with regard to equitable considerations is that the parent is seeking to “maximize” the student’s educational possibilities with the program requested. (Ex. IV-13-14)
Prospective Payment
The DOE asserts that prospective payment should be denied because of a lack of information concerning the , citing in sole support for this claim Appeal No. 14-029, a recently decided State Review Officer decision which has not yet appeared on the State Review Office website. (Ex. V)
Order
1)The student is entitled to DOE funding for tuition at ($103,990) for the 2013-2014 school year.
a) The DOE shall reimburse the parent for that portion of the tuition that was paid by her upon submission of satisfactory evidence of payment.
b) The DOE shall directly pay for the tuition not paid by the parent and not paid by the DOE pursuant to the Interim Order on Pendency in this matter. Case No. 145688
Dated: June 17, 2014
Judith Schneider, Esq. gc
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer Case No. 145688
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
1 List of School Providers, undated, 1 pg. Department of Education
2 Student’s class schedule, 2013-3014, 1 pg. Department of Education
3 Sch. Tuition Affidavit, 1/2/2014, 2 pgs. Department of Education
4 Meeting Minutes, 5/31/13, 5 pgs. Department of Education
5 Map- student home to School, undated, 1 pg Department of Education
6 Student bus information, undated, 1 pg. Department of Education
A` Demand- Due Process & fax confirm. 7/25/13, 17 pgs. Parent
B Find. Fact & Dec. , 4/2/09, 22 pgs. Parent
C NYC DOE IEP, 5/10/13, 17 pgs. Parent
D Letter from Parent to District, 6/14/13, 3 pgs. Parent
E NYC DOE Due Process Response, 7/17/13, 3 pgs. Parent
F Let- Par to Dist re resolution mtg. 8/9/13. 3 pgs. Parent
G Interim Order on Pendency, 8/22/13, 6 pgs. Parent
H Quarterly Educ. Prog. Rpt.-QSAC, 12/27/12/, 3 pgs. Parent
I Quarterly Educ. Prog Rpt.-QSAC, 3/26/13, 3 pgs. Parent
J Quarterly Educ. Prog. Rpt.-QSAC, 6/3/13, 3 pgs. Parent
K Quarterly Educ. Prog. Rpt.-QSAC, 8/23/13, 3 pgs. Parent
L , created 7/2013, 3 pgs. Parent
M Parent
N Enrollment Contract – Sch., 6/21/13, 6 pgs. Parent
O Affidavit- Sch., 9/4/13, 1 pg. Parent
P Summer Sched & attendance, 2013, 2 pgs. Parent
Q Interdisciplinary Prog. Rpt, 6/2013, 12 pgs. Parent
R Interdisciplinary Prog. Rrt. 6/2012, 14 pgs. Parent
S Interdisciplinary Prog. Rpt., 12/2012, 11 pgs. Parent
T U.S. Individual Tax. Return, 2012, 3 pg.s Parent
U WITHDRAWN
V WITHDRAWN
W WITHDRAWN
X WITHDRAWN
Y ID ONLY-E-Mails-Hear. Off, Distr. Rep. & Par. Atty
Z WITHDRAWN
AA Attendance Record 2013-2014, 1 pg. Parent
BB WITHDRAWN
CC Interdisciplinary Prog. Rpt, 12/2013, 12 pgs. Parent
DD WITHDRAWN
EE Updated Attendance Record, 1/2/14, 1 p.g Parent
. FF Staff Certifs. & Resumes, undated, 19 pgs. Parent
GG program Description, undated, 5 pgs. Parent
I Prehearing conference memo Impartial Hearing Officer
II Compliance Date Extension Decisions Impartial Hearing Officer
III Parent’s Closing Memo Impartial Hearing Officer
IV DOE Closing Memo Impartial Hearing Officer
V Emails re 14-029 Impartial Hearing Officer
VI Parent’s Response re Prospective Payment Impartial Hearing Officer
VII Subpoenas and emails re objections Impartial Hearing Officer