NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 18, 2013
February 5, 2014
March 5, 2014
March 11, 2014
March 12, 2014
Actual Record Closed Date: April 28, 2014
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 18,
2013
Mother — Student
Student
Grandmother — Student
CSE, District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 5, 2014
Parents
CSE Representative — DOE
DR., School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2014
Parents
Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2014
Parents
AP Academic Affairs - by phone — Student
Teacher - by phone — Student
Student
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2014
Parents
Student
Committee on Special Education, CSE — DOE
By Complaint dated October 17, 2013, the matter 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 that the District assigned an inappropriate school setting for the Student for the 2013-2014 school year. (IHO Exh. 1) As relief, the parent seek tuition at a non-public school.
The matter did not resolve through resolution. On December 19, 2013, the pro se parties clarified the issues in the case with the assistance of this IHO. Hearing dates were held on February 5, 2014, March 11, 2014, and March 12, 2014. The parent then moved to correct the transcript by conference call dated April 25, 2014. This application was granted during the motion.
Upon the application of the parties, the decision date was ordered to be reset 5 times to allow the IHO to render a decision. For these extensions, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that these were appropriate matters for extension. There was also 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. 2)
FINDINGS OF FACT
The Student is a is eligible for services as a Student with (102, 107)
The Student is quiet and respectful, . (1-1) He (1-1) His grammar and spelling . (1-1) He does not . (1-1) The Student has , in answering questions, with writing, note taking. (1-1) His written . (1-1) He is . (1-1)
The Student is . (1-2)
The Student needs , strategies to with teachers of the due dates for assignments. (1-2)
Reading and math skills were at level equivalent in June, 2013. (1-1)
For the 2012-2013 school year, the Student attended , receiving special education services three times a week. (27)
An Individualized Education Program (IEP) from June 11, 2013 recommended 5 periods of SETTS per week. (30)
The SETTS teacher provides group and sessions. (3-4) She will provide the Student with outlines, brainstorming, modeling, prompts, and notes to assist him. (6-1)
A second IEP was created on October 4, 2013. (36)
There was no school assigned to the Student until October 19, 2013. (134; Exh. 9)
The assigned school is (116) The school children who and (116, 123, 125) The students in the school are not appropriately grouped with the Student. (123-124)
The Student has done extremely . (76) He is getting his assignments in, unlike last year with assignments. (77) He receives SETTS services from a city provider, Ms. Price. (80) He sees her once a day, and she helps him with organizational skills. (104105, 107)
The parent has been trying to gain a public school spot because she cannot afford St. Edmonds. (133)
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 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 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).
The District bears the burden of proof, but presented no witnesses in regard to the proposed school setting . J.S. v. Scarsdale Union Free School Dist., 826 F. Supp.2d 635 (S.D.N.Y. 2011)(“there is not enough evidence in the record to determine whether [the proposed school] could implement the IEP”). The District also did not rebut the parent’s contentions that the school is unsafe and is an inappropriate setting for the student. Student safety is an important consideration that can be considered by hearing officers in regard to FAPE denial claims. As the Second Circuit has stated:
IDEA requires a state to implement procedural safeguards providing parents or guardians with “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. Sect.
1415(b)(6) (emphasis added). This broad language suggests that Congress did not intend to exclude from consideration any subject matter—including safety concerns
—that could interfere with a disabled child's right to receive a free appropriate public education. Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 93 (2d Cir.
2005) Moreover, the District must show it provided the parent with an offer of a school placement by the beginning of the school year in question. 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 record is clear that the District did not provide the parents with a placement offer by the beginning of the school year.
I should point out that there is no argument that the placement at Erasmus is speculative. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir. 2012) Under the circumstances, 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 shows that the parent placed the Student in a general education school, but has supplemented that general education instruction through the use of SETTS 5 times a week. This was the recommendation of the SETTS provider. (6-2) These SETTS interventions do, to this IHO, turn the parental placement into a placement that provides specially designed services to address the Student’s special education needs. The record shows that the parent did not have any ready alternative to this placement, and that the Student has done reasonably well in the placement for the current year. The Student is on track to go to college and is doing fine at the school, with some weaknesses. (77-78) Placement in this school provides the Student with an education in the least restrictive environment and provides the Student with access to typically developing peers. The record shows that the Student is reading and performing math only about a grade level behind, suggesting that he can keep up with the work in a general education setting with the assistance of a SETTS provider. Indeed, the program that the parent has created for the Student is basically identical to the program that the District proposed for the Student. The difference with the parent’s program is: 1) it is a safe environment for the Student; 2) it was available to the Student at the beginning of the school year. The SETTS provider provides the appropriate special education interventions for the Student.
Accordingly, the parent prevails 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 parents’ 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.
There is nothing in the record to suggest that the parent failed to respond to the District’s inquiries, failed to provide the District with appropriate notice of her intentions, or otherwise engaged in conduct that . The parent prevails on the third criterion and is awarded tuition payment/reimbursement for St. Edmunds for 2013-2014.
ORDER
As a result of the foregoing, the District is hereby ordered to pay for the Student’s tuition for the 2013-2014 school year at Dated: May 14, 2014
Michael Lazan mv
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML;mv
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
DEPARTMENT OF EDUCATION
1 IEP, 6/11/13, 10 pages 2 IEP, 10/4/13,[11] pages 3 Evaluation 7/12/13, 25 pages 4 OT Evaluation, 7/3/13, 4 pages 5 Progress Report, 6/7/13, 1 page 6 SETSS Progress Report, 6/10/13, 2 pages 7 Letter, 11/21/13, 1 page 8 P4 Form, 10/1/13, 1 page 9 Final Notice of Recommendation, 10/10/13, 1 page 10 Letter of Agreement, 6/11/13, 1 page
12 Conference Checklist, 10/4/13, 3 pages
PARENT
A Results high school selection, two pages. B Letter scores and retake. C Results school selection, round two. D Request for summer SHSAT, two pgs. E Dept. of Ed SIMI letter, two pgs. F Gibson response to request, 2 pgs. G Follow-up , one page. H Follow-up to ott, three pgs. I schedule, one page. J Request for summer SHSAT due to IEP timing, two pages. K Letter , two pgs. L Letter , four pages. M Correspondence evaluator, two pages. N admissions result inquiry, two pages. O result on round two applications, six pages. P Letter to , one pg. Q , two pages. R Response , one page. S Failure letter from SEP, one pg. T Letter to , one page. U High school round two result letter, one page. V Letter to , one pg. W Retainer letter , six pages. X Summer school report and bill from SEP, two pages Y Letter from , one pg. Z Letter from grader, one page. AA Letter , one page. BB Letter , three pgs. CC report, ten pages. DD Tuition statements, five pages
Footnotes
[11] Event Log, 5 pages