NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 18, 2013
January 13, 2014
March 6, 2014
Actual Record Closed Date: March 31, 2014
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2013
ESQ., Attorney — Student
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2014
Attorney — Student
Parents
(Via Telephone) — Student
Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2014
Attorney — Student
Parents
(Via Telephone) (Via Telephone) — Student
Designee — DOE
PROCEDURAL HISTORY
I was appointed to this matter on August 30, 2013. The resolution period expired on September 29, 2013. A pre-hearing conference was held on October 29, 2013. A pendency hearing was held on November 18, 2013. A Order of Pendency was issued on November 19, 2013.
On November 11, 2013, the parent and district requested an extension of the compliance date based on the availability of their witnesses and to prepare for due process. The extension was granted based on the representation by the parent and district that there was no impact on the student’s educational interest because the Student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The new compliance date was December 12, 2013 (IHO Exhibit 1).
On December 5, 2013, both parties requested an extension of the compliance date based on the availability of their witnesses. Although there was a prior request for an extension, the extension was granted based on the representation by the parent and the District that there was no impact on the student’s educational interest because the Student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The compliance date was extended to January 11, 2014 (IHO Exhibit 2).
On January 13, 2014, both parties requested an extension of the compliance date based on the availability of their witnesses. Although there were a prior requests for an extension, the extension was granted based on the representation by the parent and the District that there was no impact on the student’s educational interest because the Student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The compliance date was extended to February 10, 2014 (IHO Exhibit 3).
On February 12, 2014, both parties requested an extension of the compliance date based on the availability of their witnesses. Although there were a prior requests for an extension, the extension was granted based on the representation by the parent and the District that there was no impact on the student’s educational interest because the Student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The compliance date was extended to March 12, 2014 (IHO Exhibit 4).
On March 10, 2014, both parties requested an extension of the compliance date in order to keep the record open until they received and reviewed the final transcript. Although there were prior requests for an extension, the extension was granted based on the representation by the parent and the District that there was no impact on the student’s educational interest because the Student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The compliance date was extended to April 11, 2014.
BACKROUND
On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Education Act (IDEA), regarding a parent’s request for tuition reimbursement for the Student’s placement at a private school located in (IEE).
The District conceded prong one of the Burlington/Carter analysis. However, the District asserts that the parent is not entitled to reimbursement for tuition or the cost of the psychological because under the equities the parent did no act in good faith.
FINDINGS OF FACT:
The Student classified as a child with a (Exhibit K). The student presents with Nevertheless, on August 16, 2013, a day after the CSE meeting was held, the parent sent another letter to the CSE, by certified mail from , stating that in the event the DOE did not offer an appropriate placement for her son, she would have no choice but to send him to Prep. The parent also stated “it is my belief that my child has not been offered a Free and Appropriate Public Education by the NYC DOE for the 2013-2014 school year. Therefore, I am notifying you that I will be unilaterally enrolling my child at Prep…” (Exhibit D, Tr. 69).
By letter, dated August 26, 2013, the parent advised the CSE that she received the IESP instead of an IEP and asked the CSE to hold a new meeting. However, although dated August 26, 2013, the letter was not sent until August 29, 2013 (See Exhibit F, page 2).
By letter, dated August 28, 2013, the parent reiterated her concern about the meeting held on August 15, 2013 and advised the CSE that she disagreed with the DOE’S dated July 19, 2013 and that she would seek reimbursement for a private (Exhibit E, Tr. 30). Although dated August 28, 2013, the letter was sent via certified mail on August 29, 2013 (See Exhibit E, page 2).
On August 28, 2013, the parent filed the within Due Process Request (Exhibit A).
J) FAPE 2013-2014 School years:
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits 8 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial or most recent " of the student, as well as the " of the student]), establishes annual goals designed to meet the student's needs resulting from the student's enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 9 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a , Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9).
A board of education 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 board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). 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 (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). The 2013-2014 School Year:
As indicated above, the DOE conceded that the Student was not offered a FAPE for the subject school year because the CSE developed and IESP instead of an IEP. Unilateral Placement at the Private School:
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a , Appeal No. 07-038; Application of a Child with a , Appeal No. 02-014; , 458 U.S. at 188-89). Application of a Child with a , Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a child'" (Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley.
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the 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. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
I find that the evidence presented demonstrates that the parent’s placement of the Student at the Private School was appropriate. Specially, I find that the evidence shows that the Private School provided direct and specialized educational instruction that was specifically designed to meet the Student’s unique educational needs and that the Student obtained an educational benefit while attending the Private School during the 2013-2014 school year (Tr.89, 90, 92, 93, Exhibit J) (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
As indicated above, the Student is Equities:
Here, the DOE conceded that the Student was not offered a FAPE for the subject school year. Nevertheless, the DOE claims that the parent should be denied reimbursement for the cost of the student’s unilateral placement because the parent failed to cooperate with CSE. I disagree. The evidence shows that the DOE did not schedule a CSE meeting to develop an IEP for the 2013-2014 school year until August 15, 2013, even though they were on notice, by the parent, of the need for a CSE meeting in February 2013 (Exhibit B). Additionally, once the DOE scheduled the IEP meting, the parent promptly advised the CSE that she was unavailable because she would be on and asked that the CSE meeting be rescheduled to a date later in August when she would be available (Exhibit C). Further, although I find the parent’s testimony that that she turned off her cellphone during entire time she was incredulous (Tr.69), particularly since the evidence shows that she had the wherewithal to draft a letter to the DOE, print it, and then take it to the post officer where she mailed it via certified mail while she was on , these facts do not warrant a denial of reimbursement. Because, as indicated above, when the parent returned , she sent another letter to the CSE asking that they reconvene a new meeting to develop an IEP instead of the IESP. The CSE failed to do so. Note, although I am aware that the parent also filed her Due Process Request at this time, the filing of the complaint did not prevent he CSE from reconvening to develop an IEP. Thus, the DOE’s request for an Order denying reimbursement on equitable grounds is denied. (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). Accordingly, the parent is entitled to reimbursement of the tuition costs for the Private School for the 2013-2014 school year, which includes the cost of books. However, the parent is not entitled to reimbursement for the cost of the “Combined Fee” (See, Exhibit G, page 1) or any other additional fee imposed by the Private School. IEE:
The parent requests reimbursement for the (Exhibit L).
Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its is appropriate or that the obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 5 , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a , Appeal No. 08-101). If a school district's is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].
Here, the evidence shows that the parent asked for an IEE and filed her Due Process Complaint on the same date (Exhibits A and E. Tr. 60). Thus, denying the DOE an opportunity to initiate its own impartial hearing to show that its was appropriate. Additionally, the parent failed to call at the impartial hearing to testify as to the appropriateness of the and/or the appropriateness of her fee for the , which was $6,000. Further, and despite the parent’s assertions to the contrary, the evidence shows that parent was not initially cooperative with the DOE when they sought to obtain her consent for the DOE in January 2013 (Tr.55). Although the parent claims she was “confused” by the request, the evidence shows that the parent had been through this process before and I find her testimony on this point was disingenuous (Tr.55). Accordingly, for the reasons set forth above, the parent’s request for reimbursement for the cost of the conducted by Dr. is denied.
ORDERED
The Department of Education shall reimburse the parent for the cost of the annual tuition at the Private School for the 2013-2014 school year, which includes the cost of books. The parent is not entitled to reimbursement for the cost of the “Combined Fee” or any other additional fee imposed by the Private School.
ORDERED
The parent’s request for reimbursement for the cost of the conducted by Dr. is denied. Dated: March 31, 2014
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer
JM:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New City Department of Education has a right to appeal the decision to the State Review Officer of the New State Education Department under Section 4404 of the Education Law and the Individuals with 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 Hearing Request dated 8/28/13, 8 pages B Letter, dated 2/26/13, 2 pages C Letter, dated 8/8/13, 4 pages D Letter, dated 8/16/13, 5 pages E Parent Letter, dated 8/28/13, 2 pages F Parent Letter, dated 8/26/13, 2 pages G Contract from , dated 2/7/13, 3 pages H Proof of Payment, dated 2/8/13, 1 page I undated, 1 page J Report Card, dated 11/1/13, 1 page
K. Report Card, 11/1/13, 1 page
L. IESP, 8/15/13, 7 , 9/13, 19 pages M Department of Education , 7/19/13