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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 26, 2014
April 14, 2015
May 29, 2015
June 4, 2015
Actual Record Closed Date: September 4, 2015
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 26, 2015
For the Student:
Attorney
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 14, 2015
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 29, 2015
For the Student:
Attorney
Parent/Mother
For the Department of Education:
Impartial Hearing Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 4, 2015
For the Student:
Attorney
parent
Program Director (Via Telephone)
For the Department of Education:
District Representative
By appointment on October 30, 2014, after the recusal of other IHOs, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1).
The Complaint alleges that the Individualized Education Program (IEP) team from June, 2012 failed to assess the Student in all areas of suspected disability. The parent also alleges that the IEP contained inappropriate goals, no , an inappropriate class size, no transition plan between public and private schools, and inappropriate needs. The parent further alleges that the District failed to recommend a specific school setting for the 2012-2013 school year. As relief, the parent seeks reimbursement for tuition, and expenses as a result of the parental placement at the school.
The matter was extended numerous times on joint application to March 21, 2011, as a result of witness availability, complexity of issues, decision , and related issues. No objection was raised in connection to any extension.
The District did not present any witnesses in this case.
FINDINGS OF FACT
The Student entered the (“ ”), in January,
2013. At the time the Student entered school in January of 2013, he was . He had . He had . He was i . He had He was . (37-41)
Academically, he was able to .
His parent placed him in the . (“ ”) This program offers a , a , an , and for its students. (36) The Student’s classes were taught by a licensed special education teacher. (47) There is some , but the bulk of the day is academic. (55)
The Student’s classroom had a ratio, and all the students in the . They were in his range academically. (58) The school provided the Student with a “ . (62-64) He made academic progress in all areas, and also made progress in working with other students. (64) He showed greater fluency through a “ ” technique, he made . (65-66) In , he made progress in work on fractions and word problems. (67) His . (67-68)
Tuition at the school for the Student for the 2012-2013 school year was , inclusive of all . (43-44) The parent has paid of the tuition. (89)
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 FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its 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][3][E][ii]; 34 C.F.R. § 300.513[a][2].
The District did not defend the IEP or placement in this case. The parent prevails on “prong one.”
On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). 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 testimony in the record establishes that the program provides special interventions to address the Student’s special education needs. The school offers , accommodations, a class led by a special education teacher, access to , and a that has been particularly helpful to this . The record also shows that the Student has made progress in all areas, including in , , , , and .
The District argues that the parent’s presentation is based on hearsay, but hearsay is admissible in this proceeding. Moreover, the District presented no testimony or evidence to contradict the hearsay evidence or to suggest in any way that this evidence was unreliable. The District argued that the Student could benefit in a less restrictive environment (“LRE”), but again presents no evidence that the Student could benefit from such an environment given his . Moreover, while LRE may be a consideration in assessing a parental placement, there are many reported cases where reimbursement is ordered for a parental placement even though it is not the Student’s LRE. The District also argues that a portion of the Student’s school day is , but points to no authority which authorizes a hearing officer to deny reimbursement if there is some offered during the day. On the contrary, there is a significant body of caselaw where parents of children win reimbursement/payment awards for schools that provide such instruction. Application of the New York City Department of Education, Appeal No. 05-074; Application of a Child with a Disability, Appeal No. 04-073; Application of a Child with a Disability, Appeal No. 01-102. Accordingly, the parent prevails on “prong two.”
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 notwithstanding their being advised that they should do so, 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 of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071. The District’s primary argument here relates to the employment status of the providers, which is not a basis to deny reimbursement. A review of the record indicates that the parent attended CSE meetings and generally cooperated with the District. The parent gave the District a fair opportunity to create a program for the child. There is nothing in the record to suggest that the parents failed to comply with any directive from the District or failed to respond to phone calls from the District. The parents prevail on the third criterion and are awarded tuition reimbursement/payment for for 2012-2013.
ORDER
As a result of the foregoing, it is hereby ordered that the Department of Education reimburse the parent for all tuition, , and payments made to for the 2012-2013 school year. Additionally, the Department of Education shall pay directly for all tuition, payments and owed by the parent in connection to the Student for the 2012-2013 school year.
Dated: September 18, 2015
MICHAEL S. LAZAN, 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
A Due Process Complaint, dated 6/2/14, 3 pages
B '12-'13 IESP, 9 pages
C Parent Letter to DOE, 1 page
D Contract, dated 1/25/13, 1 page
E Breakdown of Costs, dated 1/25/13, 1 page
F Attendance Record, dated 8/5/13, 1 page
G Check Payment to by Parent, dated 5/3/13, 1 page
H Mission Statement, 2 pages
I '12-'13 Goals, 1 page 30 31
J Teacher Report, dated 6/13, 2 pages
K Program, '12-'13, 1 page
L Student Profile, 1 page
M Classroom Routines, 2 pages
N '12-'13 Daily Schedule, 1 page
O Goals, 1 page
P Communication Goals, 1 page
Q Comp Goals, 1 page
R , dated 1/11/12, 1 page
S of Services Received, 3 pages
T , 1 page
U 12/11 Social Services Referral, 3 pages
V DOE Response, dated 6/16/14, 3 pages
W 2012 Tax Documents, five pages