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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: May 24, 2013
August 8, 2013
October 8, 2013
November 20, 2013
March 28, 2014
May 12, 2014
Actual Record Closed Date: September 4, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2013
Attorney — Student
Social Worker, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2013
Attorney — Student
DID NOT APPEAR
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2013
Attorney — Student
Parents
Teacher (Via Telephone) — Student
, CSE
, IEP Witness (Via Telephone) , School Witness (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20,
2013
Attorney — Student
Parent/Mother — Student
DR., School Psychologist/Chairperson — DOE
Designee CSE- — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2014
Attorney — Student
Parent/Mother — Student
Master Teacher (Via Telephone) — Student
Curriculum Director (Via Telephone) — Student
District Representative — DOE
DR., School (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2014
Attorney — Student
, CSE
By appointment dated April 30, 2013, the matter came before me as impartial 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, inter alia, that the District’s Individualized Education Program (IEP) dated March 27, 2012 was written by an incomplete team; that the team failed to review the results of a recent evaluation; failed to base the recommendations on sufficient evaluative data; was written by a team that did not allow the parents to participate; provides for a class size that is too large; that the present levels of performance were inadequate; that the transition plan for the Student is inadequate; and that the placement was improper for the Student. As relief, the parents seek funding/reimbursement for 2012-2013.
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, due process considerations, and to allow the 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)
FINDINGS OF FACT
The for services as a student with an . (Exh. F, 37)
The Student has (51) He is . (52, 114) He is testing environment. (55) This issue makes him require a very small class size. (139) Even in a classroom with 7, or in a group of 3, he for much of the time. (139)
He also has . (114) He . (114) He has difficulty . (54)
The Student was in regular education . (165) He received special education services outside the classroom . (165) Subsequently, he has attended , which is the parental placement school at issue in this case.
On March 27, 2013, an IEP team met to discuss the Student. (36) At the meeting , a special education teacher, the parent, and . (36) from vocational programming, but there was no response from the District. (168-169) The parent expressed discontent with the District’s recommendation, feeling that the that the student needed sensory interventions that were not available. (169) The District would not provide the program the parent desired.
The Student was recommended for a twice a week for 30 minutes in a group, twice a week for 30 a week for 30 minutes, counseling once a week for 30 minutes individually and 30 minutes in a group. (37) The team relied on progress notes and reports from the Student’s school in determining this program. (37) The provides the Student with . (68) The IEP included reading goals, math goals, functional goals. (40) The IEP included a transition plan. (43)
The Student was recommended to . (84-85)
No vocational assessment was done in connection to the transition plan in the IEP. (60)
The parent visited the proposed placement, , but was concerned about the size of the school which has 4000 students. (172) The parent then sent the District a letter explaining her concerns. (175)
The Student was placed in the , a school of 40 special education students. (113) The school has
His classroom had 7 students ages 16-20, with two staff members in the class, a teacher and an assistant. (115-116)
At the start of the school year, the Student read . (118) There was attention paid to reading instruction in the school, including “functional” reading. (118-120) Reading was provided in small group instruction. (123) Comprehension improved, as the Student was reading longer paragraphs and he could sustain individual attention longer. (124) He learned vocabulary words. (124) On , progress was noted in comprehension. (125) He was taught functional math in a small group. (126-127) Writing work on including letters, use . (130) The classroom . (136-137) Social progress was noted in regard to having conversations. (137)
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 and 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 Committee on Special Education (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 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)
The District did not submit evidence in this matter, and is not in the record. The brief testimony alone is insufficient to establish that the District offered this student a FAPE. The record indicates that the Student requires very small group instruction, since even in a . even in a . Nevertheless, the District has proposed an increased class size for the student . Further, the Student has particular issues with . There is nothing in the record to establish any District plan to address this need. He also has sensory issues. There is nothing in the record to establish that the District has proposed any interventions to address this issue either. The record also does not establish that the Student receive any kind of comprehensive transition plan in his IEP. Given the above, I find that the above violations denied this Student a FAPE for 2012-2013. R.E., 694 F.3d at 191.[1]
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).
It has been held that as proper under the IDEA when it does not, at a minimum, provide some element of special education services in which the public school placement was deficient. G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552
(S.D.N.Y. 2010)
Here, the parental placement does provide services that meet the Student’s special education needs. His classroom had students, a teacher and an assistant. Progress was noted in comprehension. He was taught functional math in a small group. The classroom appropriately focused on functional living skills as conversation turn taking, detecting mood based on facial expression, and flexibility about negotiation and compromising. Social progress was noted in regard to having conversations.
Given the above, I find that the parental placement meets the standard in Gagliardo, and the parents prevail on the second criterion.
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 parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement 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 intent with remove the child 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 record establishes that the parents provided the District with notice of the unilateral placement, visited the proposed school, attended meetings, and generally cooperated with the District. Under the circumstances, I cannot find that the parents were “disingenuous” about their interest in the placement. Compare J.S. v. Scarsdale Union Free School Dist., 58 IDELR 16 (S.D.N.Y. 2011)(testimony of parent indicated that they were not seeking an educational placement; this and other factors resulted in reduction of award); A.H. v. New York City Dep’t of Educ., 652 F.Supp.2d 297 (S.D.N.Y. 2009), rev’d on other grounds, 394 Fed. Appx. 718 (2d Cir. 2010)(it was clear the parent had decided not to accept the District’s recommendation before the process was complete).
Accordingly, I will award the parents an award of
ORDER
As a result of the foregoing, I hereby order the following:
1. The parent is awarded tuition reimbursement/ for 2012-2013. 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 DESCRIPTION I.D. IN EV.
A 4/29/13 Impartial Hearing 3 4
Request
B 3/20/13 Findings of Fact and 3 4
Decision
PARENT DESCRIPTION I.D. IN EV. C Parent response, 10 10 6/13/12, 3 pages D Letter from Parent, 10 10 dated 8/14/12, 3 pages E Letter from Parent, 10 10 dated 8/22/12, 4 pages F Letter from Parent, 10 10 dated 10/18/12, 4 pages G 12/13 daily schedule, 10 10 1 page H 12/13 enrollment contract, 10 10 2 pages PARENT DESCRIPTION I.D. IN EV. I , dated 3/2/13, 3 pages 26 26 J '12-'13 plan, 17 pages 26 26 K Proof of payment, various dates, 26 26 3 pages L Program description, undated, 2 pages PARENT DESCRIPTION I.D. IN EV. M Additional proof of payments 216 217 for 2012/13 school year, 3 pages
Footnotes
[1] I have considered the parents’ other allegations in the Complaint, and find that I need not reach them given my determinations herein. Application of a Student with a Disability, Appeal No. 09-072.