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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: January 15, 2014
Actual Record Closed Date: February 14, 2014
Hearing Officer: Leah Botwinik Almeleh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2014
Parents
Parents
Esq. — Parents
(via telephone) — Parents
Head Teacher (via telephone) — Parents
Chairperson’s Designee — District
PROCEDURAL CONTEXT
On September 30, 2013 I was appointed to hear the matter of Dylan H. versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act,[20] U.S.C. Section 1415 (f)(1). In furtherance thereof, a prehearing conference was held on November 6, 2013 and hearing on the matter was scheduled for January 15, 2013. On this day and immediately prior to the commencement of the within action, the Department of Education essentially conceded prong one of Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] by failing to submit any evidence or testimony. As a result, the Parents maintained the burden of proof in the matter, sub judice, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985].
Specifically, the Parents assert that the Department of Education’s (alternatively the “Department”) educational placement, as memorialized by the Indvidualized Education Program (IEP) of June 6, 2013 stands in violation of its mandate pursuant to demonstrating the appropriateness of a parent’s unilateral placement. "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 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]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). 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 also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (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 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).
The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, 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; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a , Appeal No. 02-111).
Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a , Appeal No. 02-111; compare Application of a Child with a , Appeal No. 99-44.
Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 20132014 School Year?
Although the Parents did not receive a placement until August 2013, upon receipt of their placement notice, they immediately attempted to contact the school. When this was unsuccessful, the Parents wrote to the CSE requesting information, but received no response. Exh. C. When access to the School was finally forthcoming well into September, the Parents were advised by the Parent Coordinator that the site did not offer the recommended program. Tr. at 54-58; Exh. D. In the absence of any response from the CSE, the Parents duly placed the CSE on notice that they would be seeking reimbursement from the Department. Under these circumstances, I do not believe there are any equitable considerations which militate against supporting the Parent’s claim to reimbursement.
CONCLUSION
The Parent’s request for relief is granted in full for the 2013-2014 school year.
Wherefore, it is hereby ordered that:
Within thirty (30) days of the date of this Order, the Parent shall provide the Department of Education with proof of payment for all tuition expenses incurred during the 2013-2014 school year at the for Learning.
Within 30 days of receipt of the Parents’ proof of payment, the Department of Education shall reimburse in full for tuition expenses incurred at the during the 20132014 school year. Dated: February 14, 2014
________________________________
LEAH BOTWINIK ALMELEH, ESQ.
Impartial Hearing Officer
LBA: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 Request dated 9/30/13, 5 pp. B Notice of Unilateral Placement dated 8/23/13, 3 pp. C Letter to dated 8/28/13, 1 pp. D Letter to dated 9/25/13, 1 pp. E Class Schedule, undated, 1 pp. F Enrollment Contract dated 2/6/13 4 pp.
Footnotes
[20] US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exh. A. As a corollary, the Parents are seeking tuition reimbursement for the 2013-2014 school year in furtherance of a unilateral transfer to the for (hereinafter “ ”), a non-public school setting which the Parents assert is an appropriate educational placement for their child. Beyond this, the Parents maintain that there are no equitable factors which militate against their right to reimbursement. DISCUSSION As the Department has essentially conceded prong one of Burlington, supra, there is no need to address the Department’s burden of proof with regard to its placement. Therefore, I will immediately consider appropriateness as an educational setting for In furtherance thereof, the Second Circuit has set forth a stringent standard for