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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
June 9, 2014
September 15, 2014
Actual Record Closed Date: November 14, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Attorney PARENT 11/27/13 Attorney PARENT 06/09/14 Parent PARENT 06/09/14 District Rep. DISTRICT 06/09/14
Principal DISTRICT 06/09/14
Teacher DISTRICT 06/09/14 Attorney PARENT 09/15/14 Parent PARENT 09/15/14
Principal PARENT 09/15/14 Administrator PARENT 09/15/14
On October 16, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old student attending a private school and the New York City Department of Education (“DOE”) - District: , regarding the student’s special education program. After adjournments were granted on consent of the parties or for cause, the impartial hearing was held on November 27, 2014, June 9, 2014 and September 15, 2014. The parties opted to submit closing statements in writing that were due and received on October 14, 2014. (T-210, D-10 & P-T) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
The student in this case attended a private school for the 2013-2014 school year.
(See Parent’s Due Process Complaint - “DPC”) The Parents allege that the Committee on Special Education (“CSE”) met on May 9, 2013 and produced an Individualized Education Program (“IEP”) for the student that is procedurally and substantively flawed.
(Id.) The Parents further allege that the DOE placed the student at a public school that did not have a spot for her. (Id.) Accordingly, the Parents unilaterally placed the student in a private school for the 2013-2014 school year. (Id.)
At the impartial hearing, the Parents seek the following relief: (a) the NYCDOE should be ordered to reimburse the student’s Parents for the tuition, costs, and expenses of the student’s special education program at the private school (including all services); and
(b) to the extent that the Parents are unable to afford any portion of this program on their own, direct/prospective funding should be ordered; and
(c) the student’s Parents have accepted, “without prejudice”, special education transportation for the student, should the DOE fail to provide appropriate transportation for the student, the Parents reserve the right to seek reimbursement/funding for the costs of this service.
The Parents in this case did not request an Order of Pendency and resolved the issue of “transportation with the DOE prior to the hearing’s conclusion. (Id. & T-28)
THE DOE’S CASE
The DOE argues that it offered the student a “free and appropriate public education” (“FAPE”) for the 2013-2014 school year. (T-44) What ’s the DOE recommended school would have been able to provide the student with the recommended class size and related services and would have been an appropriate environment for addressing the student’s educational needs. (T-46) By contrast, the DOE argues that the Parents’ chosen private school is inappropriate for the student. (Id.)
The DOE called (2) witness and submitted (5) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parents argue that the student is diagnosed with and has been classified as . (T-47) The DOE failed to offer the student a FAPE for the 2013-2014 school year when they recommended a “ ” setting that they did not have a spot for the student in. (Id.) The Parents state that they sent the DOE a letter in October notifying the agency that the recommended “ ” placement was inappropriate for the student. (Id.) The student’s IEP dated May 9, 2013 is riddled with substantive and procedural violations. (T-48) The DOE also did not offer the Parents “parent counseling” or “training.” (T-49)
The Parent called (3) witness and submitted (18) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parents’ case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)
The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.
of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))
The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and
(b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V.
Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34
C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))
The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)
Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:
Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-
102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-
049).
As stated above, the DOE 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 DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim.
(Carter and Burlington, supra)
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.
(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 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, 20 U.S.C. § 1412[a][10][C][ii] and 34
C.F.R. § 300.148)
As noted above, a FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Rowley, supra) Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each “Committee on Special Education” (“CSE”) when convened shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
Here, the record shows that the student’s CSE team on May 9, 2013 was composed of his private school special education teacher (via telephone), a general education teacher also acting as the district representative, the Parent (via telephone), a school psychologist, the student’s private school classroom teacher (via telephone) and a social worker. (T-84 & P-B)
The student’s CSE team did not include a “Parent Member.” (Id.) 8 NYCRR §
200.3(a)(1)(viii) states as follows:
200.3 Committee on special education and committee on preschool special education.
(a) Each board of education or board of trustees shall appoint:
(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:
(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)
It is evident that the Parent in this case received the support and input of the student’s private school providers at the CSE meeting. (Id.) The special education teacher acting as the district representative testified that “both the Parent and the school” participated in the meeting. (T-95) Indeed, the Parent concedes that she participated in the meeting and that the private school provided the CSE with progress reports and draft goals. (P-T)
It was the duty and responsibility of the CSE to ensure the Parent could effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:
It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;
Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.
The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;
Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….
Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.
While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]) Here, I find that the absence of a “parent member” at the student’s May 9, 2013 CSE meeting did not deprive the Parent of the opportunity to meaningfully participate in the meeting.
An appropriate educational program also begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09)
Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR 200.4[b][4])
The student’s private school progress reports and “Educational Evaluation” were received in evidence. (D-4, P-M, P-O & P-P) The student’s Educational Evaluation was conducted on April 18, 2012, just over a year from the student’s CSE meeting held on May 9, 2013. (D-4 & P-B) The Educational Evaluation summarizes the student as follows:
[Student name] is a student attending the program at who receives and . An evaluation was needed to determine appropriate services and placement to date. She has and is otherwise in good health.
[Student name] was assessed during separate session, where she was . On the , [student name] performed on grade level in her skills. She was able to , however were level. In , [student name] can
; she can
. She
.
is needed. [Student
name] could only and
.
[Student name] is able to .
However, her delays in are evident in her
and
. A / progress report is pending regarding her skills to date. [Student name] can
; current skills are detailed in the progress report. [Student name] is a young girl who does not present with any concerns. (D-4)
The student’s IEP specifically references the Educational Evaluation. (P-B) The IEP recommends the following “ needs” by way of addressing the student’s Educational Evaluation; (a) and , (b) , (c)
, (d) approach, (e) , (d)
, (e) , (f) , and (g) testing
accommodations. (Id.) The IEP notes that the student continues to need a setting to address her academic needs. (Id.) Keeping with the Educational Evaluation findings, the IEP does not recommend a “ ” (“ ”) for the student. (Id.)
The IEP’s student’s “goals” include having the student improve skills by and accuracy to be measured by teacher and provider observations. (Id.) A “ ” is mandated to improve the student’s skills to accuracy. (Id.) skills are to improve to . (Id.) Under the IEP the student will be expected to accuracy. (Id.) She will be expected to demonstrate impr oved skills, and improve her skills, by accuracy when . (Id.)
The student’s private school principal testified that the IEP goals were “ ” (T-153) However, she acknowledged that the student’s skill goal was based on the private school “IEP report” and said that the was “okay.” (T-153-4) She further testified that the goal “would be good though”, as well as the student’s goals. (T-154-
5) She asserted that the student’s goals were not discussed at the IEP meeting and that the student’s goals “are extremely simple, very simplistic and not appropriate.” (T155-6) However, these are the very goals that were provided by the private school to the CSE. (T-95, D-3 & D-4) What’s more, the private school principal also testified that students are accepted to the private school if they have “an appropriate placement in terms of grade, social/emotional development and academic development.” (T-122) The student in this case was said to “fit in socially/emotionally in our class as well as academically.” (T-123) The private school principal also testified that “At the beginning of the year, we set up a program for each individual student, [student name] was included in that.” (T-125) The student progressed in , and under the private school program that was adopted by the CSE. (T-137-144) The student was said to exhibit “steady progress” under the private school program.
In addition to the goals stated above, the student’s IEP recommended the student’s placement in a “ ” special education classroom with related services of “ , ”, ( , ”) and ( , ), with all related services to take place . (Id.)
The Second Circuit has determined that “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression’” and if the IEP affords the student with an opportunity greater than mere “trivial advancement.” (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch.
Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some “meaningful” benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y.
2006]) A plain reading of the case law makes clear that the standard for the DOE to meets it burden to provide the student with a FAPE is not high. The principal testified that the private school meets the student’s focusing needs by using a approach, with in . (T-126-7) I find that the DOE’s recommended program provides exactly what is needed and recommended for the student.
The Parent has argued that the student would have needed a “variance” for placement at the recommended DOE school. (T-196-7) Essentially, the Parent argues that the DOE could not ‘implement” its recommended program as required under law. In order to show a violation of the IDEA based on a failure to implement an IEP, “a material failure” must be shown. (See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007]; Houston Independent Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; Fisher v. Stafford Township Bd. of Educ., 2008 WL 3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003] and SRO Nos.: 10-013, 10-008, 09-130 & 09-088)
Here, the student did not attend the DOE’s assigned school for the 2013-2014 school year and therefore it is speculative to ascertain the degree to which the DOE would have implemented or failed to implement the student's IEP during that school year. Notwithstanding the speculative nature of the parent's claim, I find that the hearing record contains sufficient evidence that the DOE would have been able to provide the student with the related services set forth on his May 9, 2013 IEP.
The DOE principal testified that she did have a class for graders available at her school. (T-65) She would be able to provide the student’s recommended services at their recommended frequencies, for the student. (T-66) The teachers work to prepare lessons for individual learners by differentiation and referring to their goals.
(T-68) The students and . (T-71-2) Currently, there were only students in the class. (T-73-4) For all of these reasons, I decline to find a denial of a FAPE based on a material failure to implement the student’s IEP.
NOW therefore, it is hereby
ORDERED that the Parent’s requested for relief must be denied.
Dated: December 3, 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 RECORD
Number/Letter Title Dated For # of Pages
A Demand for Due Process 10/15/13 PARENT 06
B New York City DOE IEP 05/09/13 PARENT 17
C Letter from Parent with Fax 08/27/13 PARENT 02
Confirmation
D Letter from Parent 10/02/13 PARENT 02
E Student’s Daily Schedule 2013-2014 PARENT 01
F Student’s Private School Undated PARENT 01
Program Description
G Tuition Contract 09/01/13 PARENT 01
H OMITTED Undated PARENT 00
I Attendance Record Undated PARENT 01
J Parent’s Federal Tax Return 2012 PARENT 02
K OMITTED Undated PARENT 00
L Attendance Record 05/22/14 PARENT 01
M Student Progress Report 01/2014 PARENT 03
N Letter Regarding Attendance 03/18/14 PARENT 01
O Progress Report Spring 14 PARENT 04
P Progress Report 01/2014 PARENT 03
Q Attendance Record 06/30/14 PARENT 01
R Federal Tax Return 2013 PARENT 02
S Affidavit of Payment 07/29/14 PARENT 17
T Closing Statement 10/14/14 PARENT 23
1 OMITTED Undated DISTRICT 00
2 Final Notice of 08/08/13 DISTRICT 01
Recommendation
3 School Progress Report 05/09/13 DISTRICT 01
4 Goals 05/09/13 DISTRICT 01
5 Educational Evaluation 04/18/12 DISTRICT 04
6 OMITTED Undated DISTRICT 00
7 Closing Statement 10/14/14 DISTRICT 10