New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 30, 2013

November 20, 2013

December 11, 2013

January 27, 2014

February 6, 2014

February 27, 2014

Actual Record Closed Date: May 20, 2014

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 30, 2013

Attorney — Student

Translator — Student

Parent (Via Telephone) — Student

DR., CSE, Chairperson’s Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2013

ESQ., Attorney for Parent — Student

Parents

Translator — Student

DOE Representative, CSE- — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11, 2013

ESQ., Attorney — Student

Intern, — Student

Helpline Advocate — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 27, 2014

Attorney — Student

Mother — Student

Interpreter — Student

District Representative — DOE

School Psychologist (Via Telephone) — DOE

School Witness (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2014

Attorney — Student

Parent/Mother — Student

Law Clerk — Student

Interpreter — Student

DR., Director (Via Telephone) — Student

Contemporary Issues Teacher (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2014

Attorney — Student

Parents

Interpreter — Student

CSE- DOE Representative — DOE

This hearing was requested by the parents on September 27, 2013. The hearing was held on October 28, October 30, November 20, December 11, 2013 and January 27, February 6 and February 27, 2014.

SCHOOL DISTRICT

The school district contends that it offered the student a free and appropriate public education for the 2013-14 school year, that the unilateral placement is not appropriate and that the equities favor the school district. The school district submitted documentary evidence and testimony. (Exhs. 1-5) The witnesses were a school psychologist, a school administrator from the recommended school and the school district representative.

The school psychologist testified that she was a member of the Individualized Education Program (IEP) team that met on February 5, 2013. The team consisted of a school psychologist who also served as district representative, a special education teacher who served as translator, a general education teacher, and the parents by telephone. The parent member was waived by the parents. The team attempted to reach representatives from the student’s unilateral placement, but they were unsuccessful and the meeting proceeded without them. The team developed an IEP. The school psychologist testified that the team did not have recent school reports from the unilateral placement. The unilateral placement did provide progress reports but they were not received until after the meeting. Instead, the team reviewed previous documentation, including the psychoeducational evaluation that was done the previous year, the previous IEP, and received input from the mother.

The school administrator from the recommended school testified regarding the services that were available at the recommended school. She opined that the student’s needs would have been met.

PARENTS

The parents contend that school district failed to provide a free appropriate public education (FAPE) for the 2013-14 school year, that the placement selected by the parents was appropriate and that the equities favor the parents. The parents submitted documentary evidence and testimony. (Exhs. A-R) Parents’ witnesses included the director of the unilateral placement, a teacher from the unilateral placement and the parent. The witnesses testified as to parental efforts to obtain appropriate services from the school district, the services the student received at her school, her strengths and weaknesses and the progress she made.

FINDINGS

As was recently restated in Appeal No. 14-012, two purposes of the Individuals with Disabilities and Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities 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 disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; 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 procedural violations are 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]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 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, 142 F.3d at 130; 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 disabilities (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 T.P., 554 F.3d at 254; 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 least restrictive environment (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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed. App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; 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 academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. 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 evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable 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 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 Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, 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]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 parents seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). February 5, 2013 IEP I find that the February 5, 2013 IEP team was not properly composed in that it did not include a special education teacher. The record establishes that a school district special education teacher participated in the meeting as a translator, not as a teacher. It also establishes that the student’s teachers were willing and available to participate in the IEP meeting and were waiting to be contacted. Nonetheless, the IEP team proceeded without them even though their input was needed to ensure that current information about the student’s educational needs was considered by the team.

The February 5, 2013 team also lacked sufficient and recent evaluative information concerning the student’s development and needs. As stated above, the student’s teachers were not included. Additionally, the record indicates that the unilateral placement submitted progress reports to the school district which were not considered during the IEP meeting. The school witness testified that the documents were received after the IEP meeting. Additionally, the record indicates that after the documents were received the team did not reconvene to consider them.

Instead, the IEP team relied on the 2012 IEP and a 2011 school district psychoeducational evaluation . As a result, the student’s reading and math levels on the 2013 IEP are incorrect and dated. Consequently, the annual goals are also flawed. The record also establishes that the student’s transition plan was flawed in that it did not include a vocational plan. The student’s teachers testified that it was not realistic to expect that the student would be able to begin college immediately after high school.

The record also establishes was not appropriate in that it would not provide the small group instruction and individual instruction and attention the student required to succeed. The student requires small group instruction in all subjects but it was not available at the recommended placement.

For all of the above reasons I find that the school district failed to offer a FAPE for the 2013-14 school year. Unilateral Placement

Having determined that the district failed to offer the student a FAPE for the 2013-14 school year, the next issue is whether the parents’ unilateral placement was appropriate.

As was also recently stated in Appeal No. 14-012, 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, 471 F. Supp. 2d at 419). 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. 07097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 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 specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

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. Grades, test scores, and 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 handicapped 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).

I find that the parents have established that the unilateral placement was appropriate. The staff from the unilateral placement testified in great detail as to the progress the student has made academically, socially and emotionally. Evidence of actual progress is a relevant factor to a determination of whether a parental placement was reasonably calculated to confer some educational benefit and therefore, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Therefore, the parents have met their burden of showing that the unilateral placement was appropriate.

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 41718 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

Contrary to the district's allegation that equitable considerations should preclude relief in this instance because the parents had no intention of enrolling the student in the recommended school, a review of the evidence in the hearing record reveals otherwise. The hearing record contains no evidence that the parents did not consider the recommended school or that they engaged in conduct that obstructed the CSE process or the CSE's ability to provide the student with a FAPE.

In conclusion, I find that the district failed to offer the student a FAPE for the 2013-14 school year, that the unilateral placement was an appropriate for the student, and that equitable considerations favor the parents’ request for tuition reimbursement.

I have considered the parties' remaining contentions and find that I need not reach them in light of my conclusions herein.

ORDER

The school district is pay for tuition and transportation for the 2013-14 school year for the student’s unilateral placement. Dated: May 21, 2014

Esther Mora, Esq. gc

ESTHER MORA, ESQ.

Impartial Hearing Officer EM:gc

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 Impartial Hearing Decision, Case No. 144062, 7/25/13 19 pp. B Impartial Hearing Request, 9/27/13 5 pp. C School Tuition Affidavit, 10/23/13 1 pg. A Impartial Hearing Request, 7/25/13, 19 pages B Impartial Hearing Request, 9/27/13, 5 pages C Tuition Affidavit, 10/23/13, 1 page D Attending Notice with Fax Confirmation, 8/23/13, 3 pages E Letter rejecting Sheepshead Bay High School, 7/18/13, 2 pages F , 4/11/12, 4 pages G DOE , 12/20/11, 5 pages H IEP, 2/5/13, 14 pages I Enrollment Contract, 2013/2014, 8/16/13, 2 pages J Program Description, Undated, 1 page K 2012/2013 Report Card, undated, 1 page L 2013/2014 Class Schedule, 11/13/13, 1 page M 2013/2014 Attendance Record, 11/13/13, 1 page N School, 2011/2012 Progress Report, undated, 8 pages O New York State Report Card for 2010/2011,

Undated, 7 pages P New York Times Article regarding Q 2012 Tax Return, 2/4/13, 2 pages R IEP dated March 8, 2012, 11 pages

DEPARTMENT OF EDUCATION

1 IEP, 2/5/13, 11 pages 2 FNR, 619/13, 1 page 3 School Progress Report, 2/14/13, 2 pages 4 Counseling Progress Report, 2/4/13, 1 page

5 , 12/20/12, 4 pages