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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: November 27, 2013
January 14, 2014
July 18, 2014
Actual Record Closed Date: September 4, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 27, 2013
ESQ., Attorney for Parents (Via Telephone) — Student
ESQ., Attorney for Parents (Via Telephone) — Student
DR., Chairperson Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2014
Attorney — Student
Attorney — Student
Parents
DR., Director at (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2014
Attorney — Student
Attorney — Student
Parent/Mother — Student
District Representative — DOE
By Complaint dated September 27, 2013, the. came before me as Impartial — DOE
Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The Complaint alleges that the District’s Individualized Education Program (IEP) dated September 23, 2013 recommended an inappropriate program for the Student. The parent contended that the District did not recommend a timely program or placement for the Student. (Exh. A) As relief, the parent seeks reimbursement for Manhattan Children’s Center for 2013-2014.
The matter did not resolve during the resolution period. Hearing dates were then scheduled, but there were multiple adjournment requests in this case. Adjournment requests were made by both sides. No objection was made to any of the adjournment requests.
Upon the application of the parent, District, or jointly, the parties moved multiple times to extend the timelines in this case. The reasons were witness availability, parent availability, and to allow the Impartial Hearing Officer (IHO) to write a decision in this matter. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that these were an appropriate matters for extension. Especially given that this case involves an earlier school year, there was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 1)
After the proceeding, the parent submitted a brief. (IHO 2) The District did not present a closing statement.
FINDINGS OF FACT
The Student is as a student . (Exh. B)
His assessed abilities lie , with a abilities. (Exh. B) He , and skills. He has and . He and will , which impairs . (Exh. HH )
He (Exh. HH)
He requires (Exh. MM)
The Student also requires to allow him to progress in the community and to generalize skills. (Exhs. D, HH, OO)
For was placed in an approved non-public school by . (Exh. OO) The Student attended for the entire school year.
For the 2013-2014 school year, the parent sought a placement in June, but did not receive an IEP meeting until September 23, 2013. (Exhs. B, P, OO) No school placement was provided until January, 2014. (Exh. OO)
The Student then ., which provides the Student with an program that provides small class , social skills training. (Exh. Z) The Student was . (Exh. Z)
The Student made progress in writing skills. (Exh. HH) His ; he has improved in . (Exh. DD) individualized instruction and the small group instruction. (344, 349, Exh. S)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies a) impeded the child'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 child, or c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The Second Circuit has recently underscored the importance of writing detailed IEPs that address all of the . The court indicated that “parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) cert. denied, 2013 WL 1418840 (U.S. June 10, 2013)
In this matter, the District failed to make a presentation in its favor, and failed to present a closing argument. Additionally, the facts are clear that the District did not provide this student with a timely IEP or placement for 2013-2014. Application of the Department of Education, Appeal No. 08-058; Application of the Board of Education of the Williamsville Central School District, Appeal No. 01-012; cf. Application of a Child with a Disability, Appeal No. 05-028. The parent prevails on the first criterion.
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The record indicates that provides the Student including small class an opportunity to participate in the community with
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement 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 stating their concerns and their within ten business days before such removal. 34 CFR Sect. 148(d)(I), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The District makes no argument on this point. There is no evidence in the record to the effect that the parent did anything to hinder the process. The parent complied with all District demands and requests and provided the District with appropriate notices here. N.R. v. New York City Dep’t of Educ., 2009 WL 874061 (S.D.N.Y. 2009) at *6-*9.
Accordingly, I find that the parent prevails on the third criterion and is awarded for 2013-2014.
The parent is also seeking an order providing the student with 5 hours of ABA services weekly by a private provider.
Courts have wide discretion to insure that students receive a FAPE. As the Supreme Court stated in Burlington:
The statute directs the court to “grant such relief as [it]
determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.
School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).
The credible evidence and testimony in the record establishes that the Student requires this service to receive a FAPE. The District presented nothing to the contrary, and did not Accordingly, I find that the Student’s IEP require
ORDER
As a result of the foregoing, I hereby order the following:
1. The parent is awarded for 2013-2014;
2. The Student shall receive per week for the 2014-2015 school year, which requirement shall be incorporated into the current IEP. Dated: September 18, 2014
, ESQ.
Impartial Hearing Officer
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 Complaint dated 9/27/13, 5 pages B IEP dated 9/23/13, 21 pages C Evaluation dated 7/14/09, 8 pages D Evaluation
Conference Summary Form, 3/30/11, 1 page E . Progress Report, 6/1/13, 7 pages F Progress Report, 6/14/13, 5 pages G Progress Report, 6/14/13, 2 pages H , 5/13, 7 pages I Social Update, 7/22/13, 2 pages 34 35 J Evaluation, 7/29/13, 4 pages K , 8/17/13, 5 pages L , 8/7/13, 7 pages M , 8/8/13, 3 pages N Evaluation, 12/2/13, 4 pages O Letter , 7/27/12, 1 page P Letter from Parent, 6/18/13, 4 pages Q Notice of Meeting, 7/10/13, 1 page R Letter from Parent, 8/13/13, 5 pages S Notice of IEP Meeting, 9/9/13, 1 page T Notice of IEP Meeting, 11/20/13, 1 page U Resolution Agreement, 10/9/13, 2 pages V Enrollment Contract, undated, 2 pages W Attendance Record, undated, 2 pages X C.V. , 12 pages Y Parent's Attorney pages Z Affidavit of , 9 pages AA Progress Report, 12/6/13, 3 pages BB Resume undated, 1 page CC 5/19/14, 5 pages DD Affidavit 5/20/14, 5 pages EE Resume, 6 pages FF Resume, 2 pages GG Evaluation 10/7/13, 9 pages HH Affidavit 7/17/14, 7 pages II Progress Report 12/20/13, 6 pages JJ Progress Report, 12/20/13, 3 pages KK Program Description 4 pages LL Class Schedule 2013-2014, 1 page MM Letter 3/21/14,[1] page NN Team Summary 2/5/14,[2] pages OO Affidavit 7/18/14, 4 pages PP Affidavit 3/12/14, 4 pages
DEPARTMENT OF EDUCATION
NONE
IMPARTIAL HEARING OFFICER
Footnotes
[1] Timelines Notices, 10 pages
[2] Parent Brief, 24 pages