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THE UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
__________________________________________ In the Matter of Mr. & Mrs. __, , on behalf of [Student], Findings of Fact
Petitioners, and Decision and
NYS ID #
[district] School District, Respondent. __________________________________________
This case was brought before me upon my designation as impartial hearing officer to hear this matter, pursuant to the Individuals with Disabilities Education Act, 29 U.S.C. §1415(f)(1), and Part 200 of the Regulations of the New York State Commissioner of Education.
The case centers around the education of [Student] ([Student]), a student residing in the [district]- School District (district) who has been classified as [redacted] and recommended for a special education program of [redacted]. . Petitioners [Student]’s parents ( [redacted] parents or parent), by due process complaint notice as amended argued that the district had failed to provide [Student] with a free appropriate public education (FAPE) in the [redacted] school years. They placed [Student] at [redacted] and requested this hearing to seek an order for reimbursement for tuition during the [redacted] school years, as well as compensatory education and reimbursement for [redacted] The request for [redacted] was withdrawn during the hearing. Tr. 2270.
Both Petitioners and Respondent school district were represented by counsel. Appearing for the district were [redacted] Appearing for the parents were [redacted] .
PROCEDURAL HISTORY
A prehearing conference was conducted on February 5 and February 12, 2013. IHO Ex. III. There were 13 days of hearing in this case, held at the [district]- [redacted]. Hearings were conducted on May 2, May 3, June 5, June 6, August 12, August 13, September 10, September 11, October 18, October 21, October 22, November 18,and November 21, 2013. [1]
An amended request was accepted by the district on July 29, 2013, and a second amended request was accepted by the district on September 11, 2013, restarting the mandated timeless and creating a new compliance date. IHO-X. Extension decisions entered during the hearing are entered into the record as IHO Ex. IV. [2]
Following the final hearing date, a joint request for an extension of time made by the parties to accommodate post-hearing submissions was granted, extending the deadline for a decision to January 26, 2014. The parent asked for an extension of the January 8, 2014 deadline for submissions until January 23, 2014, with the consent of the district, which was granted. The district then asked for an additional two-week extension of time to submit briefs, with the consent of the parent; a one week extension of the deadline to submit post-hearing briefs was granted. The district’s final request for an extension of the compliance deadline was granted, extending the deadline for decision to February 26, 2014. IHO Ex. IV. Briefs and accompanying materials were received on January 31, 2014 and additional submissions from the parent [3] on February 7, 2014, making a record close date of February 7, 2014. Appended to the decision are the names of persons who appeared and the documents received into evidence.
BACKGROUND
[Student] is an [redacted] student who attended the [district]- school district schools from [redacted] . [Student] was diagnosed with [redacted] and his classification [redacted]. Services [redacted] as well as various modifications and accommodations. [redacted]
DISTRICT CASE
[Witness name redacted] testified that she was a certified school psychologist and licensed psychologist. Tr. 96. [redacted] chaired [redacted] CSE meetings [redacted] ... testing revealed [redacted] The committee recommended additional evaluations, specifically [redacted]
[Student] was evaluated by [redacted] who reported [redacted] The CSE issued a recommendation for [Student]’s [redacted] grade program to provide [redacted].
[Witness name redacted] Director of Special Services, testified at length about [redacted] CSE meetings for [Student] in the [redacted] school year, ... Following the parents’ amended hearing requests, she also testified about the district’s actions concerning [Student]’s [redacted] program. ...
Meeting # [redacted] occurred on [redacted] ...A subsequent CSE meeting took place on [redacted] The CSE reviewed [redacted]
[Witness name redacted] testified that she is permanently certified by New York State in school psychology. [redacted] She stated that she provided [Student] with his [redacted] services while [redacted] was in attendance at [redacted] school for [redacted] [redacted] described [Student] as [redacted] [redacted] achieved [redacted] goals that had been set [redacted] Tr. 445, 448-451. [redacted]
[Witness name redacted] stated that he was state certified to teach [redacted] He stated that [Student] was a student in [redacted]. Tr. 790-797.
[Witness name redacted] testified that [redacted] was certified in [redacted][Student] was in [redacted] Tr. 870-877.
[Witness name redacted] testified that [redacted] was certified as a [redacted] in New York State. She evaluated [Student] in [redacted] At the CSE meeting on [redacted] she reviewed the report by [redacted]
[Witness name redacted] testified that [redacted] was employed as [redacted] [redacted] was certified as [redacted]
[Witness name redacted] testified that [redacted] employed by the district. [redacted] is state certified to teach [redacted]
PARENT CASE
[Witness name redacted] testifying via telephone, stated that she holds [redacted] [redacted] testified that [school] is a [redacted] school, with a teaching staff of [redacted] . [redacted] described the school’s mission as [redacted] Tr. 1249-1253; Prt-Exs. MM, NN. The school is not on the list of state-approved schools for students with disabilities. Tr. 1328. [redacted] testified that [Student] [redacted] testified at length about records from [Student]’s file at [school]. Tuition at [school] for the [redacted] school year was [redacted] Asked about the school brochure’s description [redacted]
[Witness name redacted] testified evaluated [Student], which
[Witness name redacted] testified that [redacted] first evaluated [Student] in [redacted] ... The main focus of [redacted] work with [Student] was [redacted]
[Witness name redacted] testified that [Student] was [redacted] [redacted] enrollment contract signed for [redacted]
[Witness name redacted] testified that [redacted] work is with students [redacted] described [Student] as [redacted] and testified about attending [redacted]
FINDINGS
The claims in this case cover [redacted] requiring analysis to begin with a statement of facts:
[Student] attended school in the [district]-[redacted] district from [redacted]
In the [redacted] school year, [Student] was [redacted]
Discussion
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that 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 the 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985).
ISSUE 1 - Appropriateness of School District Program
The purpose of the IDEA is to ensure that all children with disabilities have available a free appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of their parents are protected. An appropriate program is one which is reasonably calculated to allow the student to receive educational benefits and is offered in the least restrictive environment for the child. 34 C.F.R. 300.550(b); 8 N.Y.C.R.R. 200.6(a)(1); see also Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).
An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child’s needs, provides for the use of appropriate special education services to address those needs, and establishes annual goals and short term instructional objectives related to the child’s educational deficits. Application of a Child with a Disability, Appeal No. 98-71; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.
The parents in this case charged that the district failed to provide a FAPE for [Student] in [redacted] that the district provided [Student] with a FAPE during the [redacted]
The basic charge of the parents concerning [Student] [redacted] were not appropriate. The complaint specified [redacted] [redacted]
Thus, I find the district has sustained its burden, and that the district provided a FAPE to [Student] in the [redacted] school year. ...
For all the foregoing, I that the district offered or provided an appropriate program and a FAPE for [Student] in the [redacted] school years. The parents’ requests for compensatory education [redacted] and [redacted] reimbursement for [redacted] are denied.
ISSUE 2 - Appropriateness of Parent Placement
Under the second prong of the Burlington, the petitioner bears the burden of proving the appropriateness of the services unilaterally obtained for [Student]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parent must show that [school] offered an educational program designed to meet [Student]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29.
As I have found that the district provided a FAPE to [Student], a ruling on this prong is moot. I include my findings here for possible appeal.
I find that Petitioners have not sustained their burden and shown [school] to provide an appropriate program and services for [Student] for the [redacted] school year.
Analysis of the appropriateness of [Student]’s placement at [school] requires examination of the program developed to meet [redacted] needs and evidence of progress, as reflected in testing and progress reports generated by [school]. In the test laid down by the 2nd Circuit, the private school must provide education instruction “specifically 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.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
I start by acknowledging that the [redacted]
For all the foregoing, I find the parent has failed to prove that [school] was appropriate for [Student].
ISSUE 3 - Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded.
Although my decision on the first and second prongs of the Burlington test makes a discussion of equities moot, I state for the record and for purposes of any possible appeal that I find that the analysis of equitable considerations for the [redacted] school year compels a ruling against the parents’ request for reimbursement of tuition paid to [school].
Analysis of equitable considerations for the [redacted] year does not offer sufficient basis for ruling against the parents’ request for reimbursement of tuition paid to [school].
The district argued that [redacted]
I agree that for the [redacted] school year, the district [redacted] Under the circumstances, equitable considerations support a denial of reimbursement for tuition at [school] for the [redacted] school year.
In sum, my decision on the first and second prongs of the Burlington test makes a decision on equities only applicable in the case of a possible appeal. For that purpose alone, I find that equitable considerations compel a ruling against the parents’ request for reimbursement of tuition paid to [school] for the [redacted] year; equitable considerations do not offer sufficient basis for ruling against the parents’ request for reimbursement of tuition paid to [school] for the [redacted] school year. [redacted]
The parent request for reimbursement for [redacted] for [redacted] The request for [redacted] for the [redacted] was withdrawn, leaving only the request for the [redacted] school year.
I find there is no justification for [redacted]
Based on the foregoing, the parents’ demand for reimbursement for [redacted] in the [redacted] school year is denied.
DECISION AND ORDER
Petitioners’ application for reimbursement for [Student]’s tuition at [school] during the [redacted] school years is denied.
Petitioners’ application for compensatory education for [Student] for the [redacted] school years is denied.
Petitioners’ application for reimbursement for [redacted] for the [redacted] school year is denied.
_______________________
Impartial Hearing Officer
Date: February 21, 2014
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Board 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. If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision. If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition. The petition for review shall be 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 State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
APPENDIX A
WITNESSES
District [Witness name redacted], Supervisor, [district] school district [Witness name redacted] Director [district] school district [Witness name redacted] [district] school district [Witness name redacted] Teacher, [district] school district [Witness name redacted] Teacher, [district] school district [Witness name redacted] [district] school district [Witness name redacted] [district] school district [Witness name redacted] Teacher, [district] school district
Parent [Witness name redacted] Director, [school] (Via telephone) [Witness name redacted] [Witness name redacted] [Witness name redacted], Parent [Witness name redacted]
APPENDIX B
EXHIBITS
Joint Exhibits 1. IEP, [redacted] 7 pages 2. IEP, [redacted] 8 pages 3. IEP, [redacted] 11 pages 4. IEP, [redacted] 11 pages 5. IEP, [redacted] 12 pages 6. IEP, [redacted] 12 pages 7. IEP, [redacted] 11 pages 8. IEP, [redacted] 14 pages 9. [redacted] Evaluation, [redacted] 8 pages 10. [redacted] Update, 2 pages 11. [redacted] Evaluation, 3 pages 12. [redacted] Evaluation, 2 pages 13. [redacted] Summary, [redacted] 1 page 14. [redacted] Evaluation, 7 pages 15. [redacted] Evaluation, 2 pages 16. Progress Report, IEP Goals, [redacted] 3 pages 17. Progress Reports for Goals & Objectives, 7 pages 18. Report Cards, [redacted] 8 pages 19. Report Card, Grade [redacted] 1 page 20. [redacted] 3 pages 21. [redacted] 7 pages 22. [redacted] Evaluation, [redacted] 25 pages 23. Consent Form [redacted] 1 page
24. [redacted] Update, 2 pages 25. [redacted] Notes, [redacted] 2 pages 26. Letter, [redacted] [redacted] redacted, 1 page 27. Letter, [redacted] redacted, 1 page 28. Letter, [redacted] 3 pages 29. Progress Report, [school] 3 pages 30. Letter, [redacted] 1 page 31. IEP, 12 pages 32. Letter, [redacted] 1 page 33. [redacted] Evaluation, 3 pages 34. [redacted] Evaluation, 3 pages 35. [redacted] Report, 12 pages 36. Letter, [redacted] redacted, 3 pages 37. [redacted] Evaluation, 10 pages 38. Transcript, [school] 1 page 39. Progress Report, [school] 6/21/13, 4 pages 40. IEP, [redacted] 15 pages 41. Letter, [redacted] 1 page
District Exhibits 1. Official Transcript, [redacted] school 1 page 2. Report Card, Grade [redacted] 6 pages 3. Report Card, Grade [redacted] 6 pages 4. Report Card, Grade [redacted] 8 pages 5. [redacted] Report Cards, [redacted] 10 pages 6. [redacted] [redacted] 7 pages 7. NYS Testing Program. [redacted] 12 pages
8. Emails, [redacted] 1 page 9. Emails, [redacted] 1 page 10. Emails, [redacted] 4 pages 11. Email, [redacted] 1 page 12. Emails, [redacted] 4 pages 13. Emails, [redacted] 4 pages 14. CSE Meeting Notice, 2 pages 15. CSE Meeting Notice, 2 pages 16. Email, [redacted] 1page 17. Email, [redacted] 1 page 18. Emails, [redacted] 2 pages 19. Emails, [redacted] 2 pages 20. Emails, [redacted] 1 page 21. Withdrawal [redacted] 1 page 22. Letter, [redacted] 1 page 23. CSE Meeting Notice, [redacted] 2 pages 24. Email, [redacted] 1 page 25. Emails, [redacted] 1 page 26. Emails, [redacted] 1 page 27. Emails, [redacted] 1 page 28. No exhibit entered 29. Emails, [redacted] 1 page 30. Emails, [redacted] 1 page 31. Emails, [redacted] 1 page 32. Emails, [redacted] 1 page 33. Emails, [redacted] 1 page 34. Emails, [redacted] 2 pages
35. Emails, [redacted] 1 page 36. Emails, [redacted] 1 page 37. Emails, [redacted] 1 page 38. Emails, [redacted] 1 page 39. Emails, [redacted] 1 page 40. Emails, [redacted] 1 page 41. Emails, [redacted] 1 page 42. Email, [redacted] 2 pages 43. Emails, [redacted] 1 page 44. Emails, [redacted] 2 pages 45. Email, [redacted] 1 page
Parent Exhibits A. Letter, [redacted] 1 page B. Letter, [redacted] 1 page C. Letter, [redacted] 1 page D. Emails, [redacted] 1 page E. Observation, [redacted] 2 pages F. Email, [redacted] 1 page G. Email, [redacted] 1 page H. Email, [redacted] 1 page I. Emails, [redacted] 1 page J. Document, [redacted] 1 page K. Emails, [redacted] 1 page L. Emails, [redacted] 2 pages M. Emails, [redacted] 2 pages
N. Email, [redacted] 1 page O. [redacted] Report Cards, 5 pages P. Email, [redacted] 1 page Q. Handwritten notes, [redacted] 36 pages R. Handwritten notes, [redacted] 7 pages S. [redacted] Report, 5 pages T. Emails, [redacted] 1 page U. Emails, [redacted] 1 page V. Emails, [redacted] 1 page W. Email, [redacted] 1 page X. Emails, [redacted] 2 pages Y. Emails, [redacted] 1 page Z. Email, [redacted] 1 page AA. Handwritten note, [redacted] 4 pages BB. Emails, [redacted] 2 pages
CC. Email, [redacted] 1 page DD. Emails, [redacted] 1 page EE. Emails, [redacted] 1 page FF. Emails, [redacted] 1 page GG. Subpoena, [redacted] 2 pages HH. Subpoena, [redacted] 2 pages II. IEP, [redacted] 12 pages JJ. Letter, [redacted] 3 pages KK. Emails, [redacted] 1 page LL. Emails, [redacted] 1 page MM. [school] Handbook, undated, 6 pages
NN. [school] Mission, undated, 2 pages OO. Assorted documents, Cover letter, [redacted] 41 pages PP. Letter, [redacted] 1 page QQ. Assorted documents, Cover email, [redacted] 45 pages RR. CV, [redacted] 1 page SS. CV, [redacted] 3 pages TT. CV, [redacted] 4 pages UU. [redacted] 7 pages VV. Observation, [redacted] 5/2/13, 1 page WW. [redacted] 10 pages XX. [redacted] 10 pages YY. [redacted] 10 pages ZZ. [redacted] 7 pages AAA. Email, [redacted] 1 page BBB. Emails, [redacted] 1 page CCC. [redacted] School, 1 page DDD. Progress Report, [school] 3 pages EEE. Resume, [redacted] 2 pages FFF. Emails, [redacted] 1 page
Impartial Hearing Officer Exhibits I. Due Process Complaint Notice, 1/2/13, 19 pages II. No exhibit entered * III. Pre-hearing conference summary, 2/5/13, 2/12/13, 2 pages IV. Decisions on Extension of Deadline, 3/14/13 - 7/12/13, 5 pages; Extension decisions post-Amended Due Process
Complaint Notice, 10/22/13 - 1/18/14, 4 pages ** V. Amended Due Process Complaint Notice, 7/29/13, 18 pages VI. Notice of Representation & Records Request, [redacted] 10/22/12, 7 pages VII. District Response to Amended Due Process Complaint Notice, 8/8/13, 4 pages VIII. No exhibit entered IX. Subpoena, 9/10/13, 1 page X. Amended Due Process Complaint Notice, 9/10/13, 21 pages XI. Subpoenas, 9/11/13, 2 pages XII. Respondent, Proposed Findings of Facts, 1/30/14, 30 pages XIII. Respondent, Memorandum of Law, 1/30/14, 27 pages XIV. Petitioners, Proposed Findings of Facts, 1/30/14, 29 pages XV. Petitioners, Post-Hearing Brief, 1/30/14, 30 pages; Contents, 6 pages
* District response to Due Process Complaint Notice was to be entered in the record upon submission of a clean copy; acceptance of Amended Due Process Complaint Notice and District Response (IHO Exs. V, VII) made entry of previous exhibit unnecessary. Tr. 91, 382-383, 646-647, 1189. ** Written extension decisions were entered into the record during and after the hearing.
All decisions were provided to parties. Tr. 383.
Footnotes
[1] Dates on transcripts for this hearing noted the year as 2103; the correct year for all hearing dates was 2013.
[2] Joint exhibits in this decision are noted as Jt-Ex., district exhibits as Dist-Ex., and parent exhibits as Prt-Ex., and IHO exhibits as IHO-Ex.
[3] Upon submission of a 60-plus page brief and proposed findings of fact, separate documents were requested and supplied. 2