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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: December 12, 2014
April 13, 2015
Actual Record Closed Date: June 8, 2015
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12,
2014
Esq. Attorney — Parents
Representative, CSE — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2015
Esq. Attorney — Parents
Mother — Parents
Headmaster — Parents
(via telephone) School
Teacher — Parents
(via telephone) School
Director and Teacher — Parents
(via telephone) School
Teacher — Parents
(via telephone) School
Representative, CSE — DOE
INTRODUCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), regarding the educational placement of for the 2014-2015 school year. The hearing was convened at the written request of ’s parents (the “Parents”) by letter dated September 20, 2014. (Exhibit A) A hearing was held on December 12, 2014, and April 13, 2015, at the offices of the New City Department of Education (the “DOE”) located at . A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.
After the first hearing day, December 12, 2014, an Interim Order was issued, dated December 26, 2014, addressing the pendency entitlement of during this proceeding. The following order was contained therein:
The Parents request for pendency, pursuant to the Findings of Fact and Decision, issued by Israel S. Wahrman, Esq., dated June 5, 2014, is granted, retroactive to September 20, 2014, the date on which the Parents filed their request for an impartial hearing. The DOE shall reimburse the Parents for tuition and fees for the School for , as well as its
Program for the 2014-2015 school year. Reimbursement shall be made upon the submission of proof of payment by the Parents to the DOE. This order will continue in effect for the 2014-2015 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.
In scheduling the hearing, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]
BACKGROUND
is a -old girl who has been classified as a student with a disability by the DOE. In addition to , has a . On August 4, 2014, the DOE’s Committee on Special Education (“CSE”) met and developed an Individualized Education Plan (“IEP”) for for the 2014-2015 school year. (Exhibit
C) The CSE classified as “ ” and recommended placement in an Class. The DOE offered placement to for the 2014-2015 school year at . By letter dated August 19, 2014, the Parents advised the CSE that they did not agree with the CSE’s recommendation. (Exhibit
H) They informed the CSE that their attempts to arrange a visit to the proposed school were unsuccessful due to unreturned telephone messages. Finally, the Parents notified the CSE that, although they remained willing to consider any recommendation and placement by the CSE, since they could not obtain information about the proposed placement, and the school year was about to begin, they had no alternative but to unilaterally place
By letter dated October 27, 2014, the Parents followed up with the CSE and documented that their attempts to visit the proposed school continued to be unsuccessful.
(Exhibit H) They again requested assistance in arranging for a school visit.
By email dated September 22, 2014, the Parents provided an update to the CSE indicating that they had finally been able to schedule a school visit for August 28, 2014, however, the school’s Parent Coordinator canceled the meeting on the night of August 27, 2014. (Exhibit O) Although the Parent Coordinator was supposed to call the Parents to reschedule the visit, and the Parents had left a message for her, as of September 22, 2014, the Parents had not received any communication. The Parents again requested assistance in arranging a visit.
By letter dated September 22, 2014, the Parents requested an impartial hearing.
(Exhibit A) The Parents unilaterally placed at School (“ ”), which included its Program, for the 2014-2015 school year. The Parents are seeking an order that the DOE reimburse them for the tuition for , including its
Program, for the 2014-2015 school year.
POSITIONS OF THE PARTIES
THE DISTRICT’S CASE
The DOE has conceded its failure to offer a Free Appropriate Public Education (“FAPE”) to for the 2014-2015 school year. (T. 14)
The DOE did not call any witnesses to offer direct testimony to support its case or to rebut any of the testimony supporting the Parents’ case.
The DOE’s only challenge to the Parents’ unilateral placement of at , and specifically with the program, was related to the remedy sought. The DOE argued that, since the school and the Parents had entered into two separate contracts, one for enrollment at and for enrollment in the program, any reimbursement should be limited to the program. The DOE asserted that the program is the special education component of the unilateral placement. The
DOE did not raise any issues with regard to any other aspect of the Parents’ placement. In addition, the DOE did not raise equitable considerations as a bar to any relief sought.
THE PARENTS’ CASE
is the Headmaster of . He explained that there are students enrolled from grades through , and that classes generally contain students. Mr. explained ’s system which consists of , allowing students to be placed according to their performance. They are scheduled to allow for students to , . (T. 16-18) Mr.
stated that approximately of ’s students have a diagnosed . The school is an school offering substantial support to students with . The program offers support a special education teacher. The program also provides support for each student with their teacher for periods a week.
Approximately of ’s students participate in the program. A student must have an IEP or a psychoeducational evaluation to be enrolled in the program. students are generally in the program from to years. The goal is for students in the program to graduate out of it having learned the techniques they need to use and how to handle their issues so they can have more independence.
Approximately of the students no longer need the program in the coming school year. In fact, in the next school year, there will be no seniors on the program. (T. 19-21; 24-25) Mr. also explained ’s program, which allows parents, subject teachers and teachers to have daily communication. Mr. described the substantial teacher development program designed to provide training to all teachers on techniques of teaching students with disabilities. To add to the environment, has some teachers also teaching subject, so there is less of a distinction between teachers and subject teachers. (T. 22-24) offers a range of instructional accommodations for its students, from ,
, , . (T. 27)
Mr. explained that offers (“ ”) as a option for its students, although they have no students, because it has been very successful with children who have . is a student in and she is in a class with a teacher and a student teacher. The teacher was previously a teacher. (T. 27-28)
is ’s mother. Ms. testified that attended the School for grades through , and began attending in . (T. 33-34)
Ms. explained that she and her husband signed the contracts for and its program in March 2014 because, at that point, there had been no discussion by the CSE of any other placement and the spot had to be secured. (Exhibit K)
is ’s teacher and has been teaching at for five years.
’s class is the class level and levels. He explained that is placed in that track because she is but has struggles related to . She needs support to .
Approximately of the students in the class have a and approximately of the class is in the program. (T. 44-46) Mr.
described ’s which can be
. He has to
. She also struggles with and
. Mr. uses various special education techniques in teaching his class, such as , including the use of , which is particularly helpful for , and .
Mr. is available to . (T. 47- 51) Mr. stated that has benefited from the and the methods he uses in class. He has observed progress in her , her and her participation in class. (T. 52-53)
is the Director of the program as well as a teacher. She submitted a sworn affidavit that was admitted into evidence with no objection by the DOE. (Exhibit M) Since ’s teacher, , was not available to testify on the hearing date, Ms. reviewed ’s file and spoke about her with Ms. . Ms. also testified briefly to confirm that she had submitted the affidavit and to answer a few questions. sees her teacher a week, , for per session. She also sees her teacher for minutes students, and for - minutes . Ms. ’s affidavit describes ’s deficit areas. She explained the support she receives from both her teacher and her teacher. She also described the work that the teacher does with to address her struggles in , and , as well as the strategies and methods she teaches Ms.
explained that since benefited from the program and uses the support provided to her, she is ready to progress to the Program in the next school year. This program allows a gradual reduction in support, while still seeing her teacher, to allow her to stage out of the program. (T. 58-62; Exhibit M)
is an teacher and a teacher at . She is ’s
teacher. It is the only class and has students and a student teacher from Columbia University. They are both available to meet with outside of class. Ms. explained that is taught like . Her class is taught in which facilitates and . Ms. explained how benefits students with disabilities by allowing them another way . Ms.
stated that has ( ),
, , and deficits. benefits from , and because it takes her time .
Ms. also uses . needs and helps because it is a that involves , and it is . For her issues, requires material. Ms. is very pleased with the progress has made academically in , as well as in her confidence. (T.65-71)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd.
of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't 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 [2d Cir. 2005]). 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 (id.). "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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
The DOE has conceded its failure to offer a FAPE to for the 2014-2015 school year. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.
The Parents have the burden of establishing the appropriateness of the program they have provided for (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])
I find that the unilateral placement by the Parents meets ’s special education needs for the 2014-2015 school year. It has been persuasively established by Mr.
Mr. , Ms. , Ms. and Ms. , as the testimony cited herein documents, that placement at , with its Program, is appropriate. The testimony provided by the witnesses strongly affirms the appropriateness of the program.
The entire program, including the classroom component and the component, is reasonably calculated to allow to make meaningful progress and to address ’s individual needs. In fact, has made meaningful progress through her participation in the complete program. ’s environment has provided opportunities for the tailoring of material and strategies to meet ’s individual needs.
The subject classes are created, and students are placed within their grade, using a track system guided by performance levels. of the student population is identified as having special education needs which warrant participation in the Program.
The faculty and staff at are trained and experienced educators of students with special education needs. Special education techniques and strategies are employed in all classes and received the she requires in all classes. In addition, the support of ’s program provided with the individualized assistance and reinforcement she needs in her areas of deficit. All of the faculty and staff coordinated their efforts to support
The DOE offered no testimony or other evidence to challenge the appropriateness of the program. The DOE’s argument regarding the separate contracts for and its program is rejected. The complete program of and the program offers the special education program and services that needs. I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.
Finally, the DOE does not offer any equitable consideration that would preclude an order in favor of the Parents.
The DOE shall reimburse the Parents for the tuition costs for to attend , including its program, for the 2014-2015 school year, upon submission of proof of payment. Tuition reimbursement is specifically inclusive of for the program, plus for the program.
Dated: June 24, 2015
AMY LYNNE ITZLA, 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
Parents Exhibits
A. Impartial Hearing Request, 9/20/14, 9 pages
B. Findings of Fact and Decision, 6/5/14, 9 pages
C. IEP, 8/4/14, 11 pages
D. Request for Evaluations, 3/4/14, 2 pages
E. Evaluation, 7/14/14, 4 pages
F. Psychoeducational Evaluation Report, 7/14/14, 5 pages
G. Report Card, 10/31/14, 1 page
H. Parent Correspondence to CSE, 8/19/14; 10/27/14, 7 pages
I. Documentation: Plan and Letter, various dates, 3 pages
J. Letter from , , 7/11/14, 1 page
K. School Contract, 3/12/14, 4 pages
L. Proofs of Payment, 4/3/14, 1 page
M. Affidavit of , 4/4/15, 3 pages
N. Report Card, 1/6/15, 1 page
O. Email from Parents to DOE, 9/22/14, 1 page