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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: January 8, 2014
January 16, 2014
Actual Record Closed Date: March 13, 2013
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2014
Attorney — Parents
Mother — Parents
English Teacher — Parents
History Teacher — Parents
Dr. CSE -District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2014
Attorney — Parents
Mother — Parents
Teacher — Parents
Dr ) Principal — Parents
Dr. CSE District Representative — DOE
On January 8, 2014 and January 16, 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”).
The proceeding was initiated at the request of the parents by correspondence dated August 27, 2013. (Ex. I). I was appointed Impartial Hearing Officer on October 21, 2013, after the recusal/s of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on October 29, 2013, the hearing was scheduled for January 8, 2014 and January 16, 2014, the first mutually available dates for the parties, their witnesses and the hearing officer. (T. 4-5, Ex. I)
The parties moved to extend the compliance date 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 my written decisions concerning that were provided to the parties. (T. 5, 93-94, 114, 229, Ex. II)
The current compliance date is April 11, 2014. The record closed on March 13, 2014, upon my receipt of all closing memoranda. [1]
Background 2
The student old and is currently enrolled in the School (“ ”). (T. 21) is a nonpublic school that is not approved by the State Education Department as a school with which a district may contract for the provision of special education services. program has two components: traditional general education program instruction and program (collectively referred to herein as “ and the student is enrolled in both. (Ex. D)
The student attended , a private school with a , through . (Exs. 1, D) The student’s mother first learned of student problems relating to education in (T. 22) In 2008, the student was tested and the findings included an attentional deficit, weak memory, and an deficit. (T. 24, Ex. E)
The student attended , the 2009-2010 school year, and was first classified by the DOE at that time. Her classification was and she received SETSS and speech/language therapy (“SL”). (T. 24-25, Ex. 1)
The student was first enrolled , the 2010-2011 school year, and has continuously attended that school since that time. (T. 25, 27)
A evaluation had been conducted by the DOE on February 8, 2011, when the student was in the 6th grade at York (“the 2011 evaluation”). (Ex. 1) The evaluator reported general cognitive ability in the average range with processing speed in the low average range and academic abilities in and noted difficulties in visual-processing speed and visual motor skills. She found the scores were compromised by significant test anxiety and other emotional intrusions “despite .” With feelings of inadequacy, she would anxious and either over-compensate or become somewhat passive. (Ex. 1)
A CSE review was held on March 1, 2013 to develop an IEP for the student for the 2013-2014 school year and the student was declassified. The CSE recommended declassification support services to be provided to the student or teacher/s and specified testing accommodations. (Ex. 3)
The parents disagreed with the declassification and in several letters noted that there had been no new evaluation that supported it. (Exs. B, C) By letter dated May 14, 2013, the parents informed the CSE that the student would be privately evaluated and the report would be sent to the CSE. (T. 33-34, Ex. C)
On June 17, 2013, the parents executed a for $41,200 plus $19,000 for Program. (Ex. D)
The contents of this Backgound section are Finding of Fact.
By letter dated July 25, 2013, the evaluation of Dr. , dated June 12, 13, 18, 2013 (“the 2013 evaluation”) was transmitted to the CSE and a new review was again requested. ( Exs. E, F) The 2013 evaluation was independently obtained by the parents who paid for it. (T. 35, Ex. M)
The 2013 evaluation reported that the with particular strength in verbal reasoning skills, strength in math abilities and weakness in reading comprehension and reading fluency across all major school areas. It was reported language organization and processing and even with extra time could become overwhelmed and in expected challenges in complicated school projects and assignments. The student presented with weaknesses in areas of verbal working memory which, among other things, affected her ability to recall details and follow through on instructions. Prior were again made. (Ex. E) The recommendations of the evaluator included: individualized instruction in small classes with a curriculum designed to benefit individuals with learning difficulties; continued support for and a variety of learning strategies including breaking down material, highlighting, underlining and note taking; previews of an upcoming lesson or project to provide context and minimize the effect of change; additional time for tests and assignment completion; chunking information. Waiver of a foreign language requirement as an accommodation to learning difficulty was also recommended. (Ex. E)
The CSE scheduled a meeting for August 16, 2013. The parent was informed that the 2013 evaluation had been received and that the CSE continued to recommend declassification. (T. 105-111, Ex. 4)
By letter date August 16, 2013, the parents informed the CSE that they believed that a FAPE had not been provided, that the student would be unilaterally enrolled at York and that tuition reimbursement would be sought. (Ex. G)
Sometime after the transmission of the August 16, 2013, the parents received a communication from the CSE recommending as a placement a public school. (T. 37) The student’s mother visited the recommended placement on September 21, 2013. (T. 37) By letter dated September 23, 2013, she informed the CSE that that placement was not appropriate. (Ex. J)
By letter dated August 27, 2013, the instant hearing was requested. (Ex. I) Positions of the Parties
The parents assert that the DOE failed to provide a FAPE for the 2013-2014 school year. They claim that the unilateral placement Program was appropriate for this student. Further, they assert that although not necessary to further demonstrate when a district concedes that a FAPE was not provided, a consideration of the equities supports reimbursement for tuition in the entirety of the program provided. Accordingly, they claim entitlement pursuant to a Burlington/Carter analysis. The parents also claim entitlement to reimbursement for the 2013 evaluation which they provided to the CSE.
(Ex. IV) [3]
The DOE concedes that it failed to provide a FAPE. However, it asserts that the parents failed to meet their burden to demonstrate was appropriate for this student. The DOE asserts that student special education needs have not been adequately demonstrated, that the program is principally a general education program that does not specifically address unique special education needs the student might have but rather utilizes educational best practices which benefit all students and that if any reimbursement is warranted it should be limited to the . Further, the DOE claims that the inadequate evidence as to the student’s . There was no claim that parental behavior in the instant matter warranted denial of reimbursement.[4] (T. 14, Ex. III) Further, the DOE claims that the parents are not entitled to reimbursement for the 2013 evaluation. (Ex. III)
Cases Presented
The DOE submitted various documents a list of which is appended. No witnesses were presented by the DOE.
The parents submitted various documents, a list of which is appended. The parents presented the testimony of the following witnesses: , the student’s English teacher; , the student’s History teacher , the student’s Principal; the student’s mother (“the parent”).
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]
Prong 1
The DOE has conceded that it failed to provide an appropriate program/placement. (T. 14, Ex. III)
Prong 2
When a public school system has failed to provide a 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 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 conclude that the parents have met their burden in the instant matter.
With regard to the student’s deficits and educational needs, I note that the 2013 evaluation has not been challenged by testimonial or documentary evidence in this proceeding and find that the reliability of its contents has not been rebutted by the DOE. Further, I note that it is not inconsistent with prior evaluations of this student. (Exs. E, 1) I find the 2013 evaluation persuasive. Although the student has in various areas grade level and age appropriate academic skills, I note that she has benefited since the 6th grade from a very structured and enriched program which supported the accomplishment/maintenance of those levels. I find her current academic levels not a basis for concluding that she has no special education needs.
Further, I find the testimony of the parents’ witnesses credible. I note that the testimony of the student’s teachers concerning the student’s current deficits is consistent with the 2013 evaluation. For examples, teachers have observed that the student has difficulty staying focused and on task (T. 67, 120, 162-163), picking out key information from text (T. 128, 130), and demonstrates slow information processing and reading comprehension delays. (T. 135, 166)
The evidence shows that the York program addresses the student’s identified special education needs.
Specifically, the evidence shows that the student is in lower track classes, including English, Medieval History and Spanish, with small class size enabling one to one attention and consisting principally of students with learning disabilities (T. 65-66, 118-119, 180), that focusing difficulties are addressed by seating her so that she does not get distracted and refocusing and redirecting her by verbal cues and by techniques to foster her being an active participant and including the use of multisensory materials (T. 68, 123-124, 180), that processing and working memory difficulties are addressed by teaching less material and going over it and by repetition and the use of graphic organizers and other instructional aides and techniques including brainstorming and chunking (T. 73-75, 78, 89, 125-127, 133, 180, 185, 188-189), that reading comprehension weakness is addressed by instruction with regard to appropriate annotating and highlighting, note taking, the reinforcement of concepts and re-teaching, and (T. 79, 81, 129, 131, 164, 167) the use of predictable routines is implemented (T. 120, 122)
”) component with eight students taught by a certified special education teacher, permits even more focused emphasis on the student’s particular needs including her writing difficulties arising from organizational deficits. (T. 157, 159, 166-168, 170, 172, 174-175)
Further, provides the student with extended time for test taking and the use of a computer in the classroom as accommodations. (T. 176)
The DOE asserts that reimbursement if provided at all should be limited to the . However, the evidence shows is fully integrated with the school program for this student. For examples teachers push-in to classes to co-teach and to teach lower track and other classes, the teacher communicates with the other teachers frequently each week, professional development with regard to special education is available to teachers, a tracking system groups all students in classes according to ability staff assist with all homework assignments as necessary and provide daily homework support and assistance with organization relevant to the student accomplishment in all classes. (T. 176, 177 215, 217-218, 233) The school-wide Edline aspect of the program provides organizational assistance to the student and relevant information to staff and parents to enable support of the student and the monitoring of her activities. I also note that although approximately one-third participate in the , closer to 50% have learning disabilities and that all 9th grade classes are small providing an appropriate environment in view of the student’s needs. (T. 214, 215, 218)
I find that the program including teaching techniques and strategies is consistent with the recommendations of the 2013 evaluation as well as staff descriptions of the student’s areas of need. The Spanish language instruction the student receives is not significantly inconsistent with the 2013 evaluation’s conclusions and recommendations. The evidence shows that that instruction is very basic, is taught by the teacher who is special education certified, moves slowly with scaffolding and emphasizes repetition.
(T. 179-180, 185-187)
The student’s teachers credibly report progress during the 2013-2014 school year with regard to attention, self-advocacy, academics, reading comprehension, confidence and the ability to appropriately and independently use various instructional techniques.
(T. 82, 128, 134, 136, 165, 167, 178, 190, 206-209) With regard to the DOE’s claim that the progress alleged is not supported by objective evidence, I note that although the parents must establish that the unilaterally selected program has the potential for progress, a demonstration of actual progress is not required for a determination that a student’s private school placement is adequate. Gagliardo, 489 F 3d at 112; Appeal No. 12-135. Further, as noted, the testimony was credible and I conclude reliable.
Even if various techniques utilized would benefit many or all non-disabled students if provided for them, as claimed by the DOE, that does not preclude a conclusion that those techniques appropriately meet the unique special education needs of this student and does not constitute a basis for concluding that the program she receives is not appropriate for her.
Based upon the foregoing, I find that the parents have established program in its entirety addressed the student’s special education needs and was reasonably calculated to enable her to make meaningful educational gains. Accordingly, I turn to whether there are equitable factors that would bar or limit reimbursement.
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). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. The signing of tuition contract to hold a place and does not shift the equities in favor of the school district. See Appeal No. 10-101. The DOE has the burden of proof with regard to equitable considerations. Educ. Law 4404 [1][c]
In the instant matter, the undisputed evidence shows that the parent attended two CSE meetings, timely informed the CSE with regard to the parents’ concerns and of the York placement and visited the proposed placement promptly. (T. 30-31, 37, Exs. B, C, G, J) No claim of lack of cooperation has been made by the DOE. In contrast, the DOE has conceded that it failed to provide a FAPE and has asserted no basis in equity for the denial of full reimbursement.
Based upon the foregoing, I conclude that a weighing of the equities supports full tuition reimbursement for the entirety of . Accordingly, I do not address the parents’ claim that merely the fact that the DOE conceded that it did not provide a FAPE precludes a denial or limitation of reimbursement on equitable grounds. (Ex. IV)
Reimbursement for 2013 Evaluation
The parents seek reimbursement for the 2013 evaluation. It is unclear upon what the CSE relied in the March 1, 2013 review. The parent asserted that a “Hoffman” evaluation, not in evidence, preceded the 2011 evaluation and was discussed but that the 2011 evaluation was not. (T. 49-51) No contrary evidence has been submitted. Further, she testified that she was told when she objected to the CSE’s recommendation at the time that the only way to have another review to reconsider the initial declassification was to obtain another evaluation. (T. 32, 41-46, 52, 99-100) I find that testimony credible and note it was not uncontested.
The parent claims that the CSE required the 2013 evaluation for its determination. However, although the CSE acknowledged receipt of that evaluation and reconvened, the parent’s testimony that the “meeting” was extraordinarily brief and that report’s receipt was noted but nothing was discussed with her was credible and there has been no evidence contesting it. (T. 105-108, 111) I find no CSE request for or reliance upon the evaluation has been established in the circumstances here. Further, I find no demand for CSE funding sufficient to have required the CSE to file a request for an impartial hearing to determine the issue of the funding as provided in relevant regulations concerning IEEs. (Ex. C)
However, under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities between the ages of 3 and 21 residing in the State, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). Here, where there has been no evidence submitted as to what was initially considered and an evaluation was required to obtain another review, I find that the parents are entitled to full reimbursement for the 2013 evaluation they obtained regardless of the degree of CSE reliance on it.
ORDER
1. The DOE shall reimburse the parents for tuition for (including ) for the period from August 27, 2013 though the date of issuance of this order (the pendency period applicable to this matter).
2. The DOE shall reimburse the parent for tuition for the 2013-2014 school year in the (including ) not otherwise reimbursed as a consequence of the student’s pendency entitlements as specified above.
3. Reimbursement for the above shall be upon submission of proof of attendance and parental payment satisfactory to the DOE.
4. The DOE shall reimburse the parents for the cost of the 2013 evaluation upon the submission of evidence of payment satisfactory to the DOE.
Dated: March 27, 2013
Judith Schneider mv
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
JS;mv
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 Eval.-Dr. , 2/8/11, 9 pgs. Department of Education
2 Instructor/Teacher Report, 2/26/13, 5 pgs. Department of Education
3 Declassification IEP, 3/1/13, 2 pgsw. Department of Education
4 Declassification IEP, 8/16/13, 2 pgs. Department of Education
A 2012-2013 School Year IHO decision, 1/22/13, 13 pgs. Parent
B Parent Let to CSE & Fedex mail conf. 5/1/13, 2 pgs. Parent
C Parent Let to CSE (reclassification)-indicated date of Parent
Fedex receipt 5/21/13, 2 pgs.
D Start Enroll Agree, 6/17/13, 4 pgs. Parent
E Rpt., 6/18/13, 10pgs. Parent
F Parent Letter to CSE, 7/25/13, 1 pg. Parent
G Parent Letter to CSE, 8/16/13, 2 pgs. Parent
H FNR, 8/16/13, 1 pg. Parent
I Impartial Hearing Request, 8/27/13, 7 pgs. Parent
J Parent Letter to CSE, 9/23/13, 2 pgs. Parent
K 1st Quarter Report, 11/1/13, 1 pg. Parent
L Proof of Payment ( ), various dates, 3 pgs. Parent
M Proof of Payment (Dr. ), var. dates, 2 pgs. Parent
I Prehearing conference memo Impartial Hearing Officer
II Compliance date extension decisions Impartial Hearing Officer
III DOE Closing Memorandum Impartial Hearing Officer
IV Parent’s Closing Memorandum Impartial Hearing Officer
V Emails re date submit closing memos March 3-4, 2014 Impartial Hearing Officer
Footnotes
[1] The closing memorandum were initially scheduled to be submitted by March 4, 2014 but at the request of the district and with the agreement of the parent, the date was rescheduled. (T. 229, Ex. V)
[3] In their hearing request, the parents also sought a determination that DOE funding for the entirety of the student’s program during the period of the pendency of this matter was required pursuant to Findings of Fact and Decision dated January 22, 2013 concerning the student’s 2012-2013 school year. The DOE acknowledged entitlement as claimed and specifically stated that reimbursement would be made. (T. 18-19, Ex. III-2, III-8)
[4] The DOE’s apparent suggestion that payment as a consequence of pendency entitlements is relevant to a determination as to the DOE’s obligations resulting from a failure to provide a FAPE in the 2013-2014 school year lacks merit. (Ex. III-8)