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: February 5, 2014

March 14, 2014

May 30, 2014

Actual Record Closed Date: June 3, 2014

Hearing Officer: John Farago, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 5, 2014

For the Student:

Father

Mother

For the Department of Education:

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 14, 2014

For the Student:

parent

Parent (Via Telephone)

For the Department of Education:

Attorney

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 30, 2014

For the Student:

parent

parent

Director learning center (Via Telephone)

For the Department of Education:

Attorney

Attorney

INTRODUCTION

This hearing concerns the placement of a seventeen year old student whose current Individualized Education Program (IEP) for the 2013-14 school year calls for placement at ‘Satte-approved non-public school ”. Exhibit C. The district has presented no case, but asserts that that placement reflects a ‘clerical error’ and that it has, in fact, made no placement for the current school year. They argue that the family must demonstrate the appropriateness of the placement which, depending on how one construes the otherwise undisputed facts, is either her continuing placement or her current district-proposed placement.

The parent seeks funding for that placement and, in addition, seeks funding for the school’s SAT-prep course that the school had strongly recommended the child enroll in (and which she has in fact enrolled in and completed).

The parties are in agreement constitutes the child’s pendency placement for the current school year.

There are two questions that are separable and must be individually resolved: who is responsible for the cost of the student’s 2013-14 placement , is the district responsible for the cost of the SAT-prep afterschool course taken at that school during that school year?

The situation is complicated and confusing and confused, but the answers to these two questions are simple and relatively uncontroversial.

THE PLACEMENT AT WINSTON PREP

On the one hand, the one thing that the placement clearly is not is a clerical error. Based on the undisputed testimony at the hearing, it was explicitly added to the child’s IEP at the start of the school year, on August 5, 2013, in response to the parent’s inquiry regarding the district’s recommended placement upon receipt of an IEP that had no specific placement described on it. Exhibit B. She was, she states and the district does not deny, informed that the district was , and that she asked for written confirmation and received it swiftly in the form of the IEP entered into evidence as Exhibit C. The conversation took place between the mother and a district placement officer empowered to make placement recommendations on behalf of the district.

The district has submitted a corrected IEP with the school name subsequently deleted, to which it has appended an attendance page from the IEP meeting in May, 2013. The transcript makes clear, however, that this recently-generated IEP was neither the IEP generated at the meeting, nor the one provided to the parent, nor the corrected one provided to the parent, but merely a current printout of the subsequent unilateral amendment to that corrected IEP, undertaken by the district without having convened an IEP review to do so. The district’s new database for special education – SESIS – renders it impossible to maintain a chain of custody or a chronology of the evidence because it updates all documents that are changed in real time, obliterating the prior electronic version of the document and writing over it.

In sum, the hard copy IEPs that constitute Exhibits B and C are the only accurate presentation of what the parent received initially (Exhibit B) and what she received later that day as a corrected version, with the district having added the school name to the placement recommendation. (Exhibit C) The district exhibit is evidence only that subsequent to August5, 2013, the district unilaterally went into its database and re-altered the program recommendation.

Be that all as it may, there is no dispute constituted the student’s last mutuallyagreed-upon or ordered school placement at the start of 2013-14, and that the parent did in fact receive from the district’s placement officer an IEP prior to the start of school for that year child’s official recommended placement.

A clerical error is one made, in general, by a clerk. West's Encyclopedia of American Law edition 2 Copyright 2008. Here the change was not made by a clerk but by a district representative empowered to act on behalf of the district. It is, moreover, an error resulting from an oversight. Id. Here, the action was deliberate and conscious, based on the undisputed testimony in the transcript. It is “A mistake made in a letter, paper, or document that changes its meaning, such as a typographical error or the unintentional addition or omission of a word, phrase, or figure.” Id. Here it was not a typographical error or an unintended change of meaning. It was a consciously made addition.

So, it was not a clerical error. But it was an error nonetheless is not a State-Approved Non-public School.

The person issuing the IEP, therefore, did err, but he did so by acting with discretion and within the scope of his authority.

More importantly, however one analyzes the child’s placement for 2013-14, and the content and effect of this IEP, one comes to the same conclusion:

The placement was, all are agreed, the child’s pendency placement. The district is responsible for it without dispute, on that basis alone.

It was her current placement, agreed to by the district, at the start of the school year, whatever the basis of that agreement was. The student was entitled to continue in her then-current, agreed-upon placement, without having to make a new determination of the appropriateness of the placement, because she was not unilaterally removed from her existing placement, but was continued within it. There is no evidence that the district ever took any steps whatsoever to move her from this current placement. It is therefore responsible for the cost of that placement independently for this reason as well.

Finally, at the hearing arising from the family’s Complaint arising from the district’s failure to have followed through on its responsibility for that cost, the district failed to meet its burden, failed to make any showing at all that it had made an appropriate placement offer for the current school year, and indeed, conceded that it failed to do so. Under such circumstances, the family has no burden to demonstrate the appropriateness of their placement because, again, they did not make a placement but simply here argue that she continued in the placement identified by the district for the current school year. See, M.N. v. New York City Dept. of Educ., 700 F.Supp.2d 356 (SDNY, 2010); State Review Officers decisions 11-053 and 12-062. The district is responsible for the cost of the placement by virtue of this conclusion.

I therefore Find that there is no theory that supports a conclusion that the district is not responsible for the full cost of the student’s program at the school for 2013-14.

THE SAT PREP COURSE.

The family appeared without representation, pro se. Their pleading burden is to have described the problem, and a proposed resolution, not to make a legal argument or identify the legal basis for their claim to a remedy. They need merely plead facts on the basis of which a legal case could be made out. This is referred to in legal procedure as ‘notice pleading,’ and is all that can be imputed as the responsibility of a party in a setting where attorney representation is not mandatory. Moreover, the clear language of the regulation defining the Complaint is consistent with this understanding.

Accordingly, the family here has sought funding for the SAT Prep course offered by the school, but need not identify any specific legal theory in which to base that claim.

I can think of only four options, and have sought to analyze bthe facts under all four. The all lead to the same conclusion: the district is not and cannot be made responsible for the cost of the LSAT prep course.

First, it might be a component of the school’s academic program, separate but mandatory, for example, of all juniors, who would not be allowed to register unless they also registered for this component. If so, the district would be responsible for the cost, because it would be a non-severable aspect of the program that I have held, above, the district must pay for.

But it is not. The testimony reflects that, though strongly recommended, it was not an essential component of the school’s instructional program. It was, in essence, an afterschool activity. There is no automatic entitlement to afterschool services when the district is responsible for a non-public placement.

Second, it is possible that the program was an essential IEP item: necessary to provide a program of instruction for the year reasonably calculated to be of educational benefit. This is different from the school insisting on it, but instead would be a necessity because the student could not meaningfully be educated without it. But SAT preparation is not an essential component of the high school curriculum as defined by the State, and the regular school day program at the child’s school was self-contained and fully appropriate without this addition.

Third, it could be viewed as a ‘transition service’ and the district has an obligation to assist students who are articulating out of district programs to transition to post K-12 settings. But, as the district points out on the record, the obligation of the district is to provide transition planning, not services to assist in obtaining admission to post-secondary education. Accordingly, even if viewed in this manner, the district would not be responsible for the cost of the program Fourth, it might be viewed as an entitlement under §504 of the Rehabilitation Act, which bars discrimination on the basis of disability. If the student were being prevented from participating in some activity that other public school students could routinely participate in, there might well be a §504 claim to pursue. But here, neither the SATs nor SAT prep are routine components of public high school programs, and the student has not been excluded from participation by reason of her disability. In public high schools as well, students who wish to take SAT prep courses afterschool may do so, but not at the district’s expense. Indeed, as the district points out, the SATs are not even a mandatory component of college applications, and students can apply to college relying on other tests or on no standardized test scores at all.

Accordingly, despite my genuine delight that this student has apparently been able to engage with the SAT tests and be admitted to a college of her choosing for the coming year, and despite my wish that the law might have held otherwise, I am forced to conclude that there is no basis in law to hold the district accountable for what was, I am sure, a very worthwhile and rewarding tutoring program.

ORDER

I therefore Order the district to reimburse to the parents any funds they have expended for the child’s education in the continuing placement for the 2013-14 school year, and to pay directly to the school any outstanding costs, or costs that may yet become due, for that school year.

Dated:

John Farago mv

JOHN FARAGO, ESQ.

Impartial Hearing Officer

JF;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

PARENT

A Due process response, 12/17/13 4 pages

B IEP, 8/5/13, 20 pages

C IEP, 8/5/13, 15 pages

D E-mail from DOE, 1/16/14, 2 pages

E Meeting minutes, 5/14/13, 5 pages

F SAT class schedule and contract, 11/22/13, 4 pages

G contract, 4/15/13, 2 pages

H Meeting notice, 4/22/13, 2 pages

I Due process complaint, 12/6/13, 1 page

J Three-year re-evaluation notice 9/30/13, 1 page

K Resolution notice and agreement 12/17/13, 5 pages

L letter, 11/18/13, 2 pages

M DOE placement officer, 8/5/13, 1 page

N academic achievement, 2011 to 2013, 8 pages

O Class schedule, 9/12/13, 1 page

P Letter, 3/29/14, 1pp

Q SAT Prep, 3/29/14, 4pp

S Letters, 6/24/13, 2pp

T Letter, 6/24/13, 1pp

U Confirmation, 1/21/14 2pp

V Attendance, 5/14/14, 1pp

W Report Card, 2013-2014, 1pp

DEPARTMENT OF EDUCATION

1 State Ed guideline on transitions, January 1993, 3 pages

2 Comprehensive SAT flier, 4 pages

3 IEP, 5/14/13, 12 pages

5 Nickerson letter, 12/17/13, 3 pages

6 evaluation, 11/20/13, 7 pages

7 Classroom observation, 1/9/14, 5 pages

8 Social history update, 10/21/13, 2 pages

IHO

I Email, 1/17/14, 3pp

II Email 1/24/14, 3pp

III Email 1/25/14, 5pp

IV Email, 1/25/14, 8pp

V Email, 1/30/14, 1pp

VI Email 1/30/14, 1pp

VII Email, 1/30/14, 2pp

VIII Email, 2/3/14, 1pp

IX Email, 2/4/14, 1pp

X Email, 3/4/14, 1pp