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: November 26, 2014
January 14, 2015
Actual Record Closed Date: February 2, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26,
2014
Attorney — Student
Chairperson Designee CSE Region — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2015
Attorney — Student
Teacher, (Via Telephone) — Student
Teacher, (Via Telephone) — Student
Parents
Chairperson Designee CSE Region — DOE
INTRODUCTION
On 10/17/2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).
A hearing was conducted and appearances made by the parties as indicated herein.
Appended to the record are lists of persons in attendance and the documents received in evidence.
On 11/26/2014 parent made a motion to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to 01/27/2014. (IHO Ex II)
On 01/14/2015 parties joined in a motion to extend the compliance date by 30 days to allow receipt of the transcript and allow for time to submit any additional documentation as discussed at hearing. Motion was granted and compliance date was extended to 02/14/2015. (IHO Ex III, Ex 77-78)
This matter was instituted by the impartial hearing request dated 10/16/2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2014-2015 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2014-2015 school year. (Ex A 1)
Relief sought includes funding or reimbursement for unilateral placement at the , including , , and cost of evaluations. (Ex 1)
Relief of transportation was withdrawn. (T 46)
IHO sought clarification of the tuition amount sought and allowed submission of clarification. Tuition sought is encompassed by:
Tuition
Combined Fees
TOTAL:
(T 75-76, Ex IHO Ex V)
BACKGROUND
At the commencement of the 2014-2015 school year the student was years of age and set to attend . (Ex A)
Student’s most recent IEP, of 01/10/2014, includes the following information:
classification of , , at level, , ,
, , (Ex B 1), , (Ex B 2), (Ex B 7)
THE PARENT’S POSITION
) ) presented the parent’s position at hearing.
notes that the DOE conceded it had not offered the student a FAPE for the 2014-2015 school year. contends the parent’s unilateral placement of the student at with the ( ) is appropriate, meeting the student’s needs, and that the parent is entitled to tuition reimbursement for said placement as well as cost of evaluation obtained through Dr. (T 16-17)
contends the student has not been tested since he was years old. (T 48)
In closing notes DOE conceded it had not offered a FAPE for the school year in question, the student’s current program has been evidenced to benefit the student and address his needs (T 69-70), student is making progress (T 70), student receives (T 69), student receives
(T 70), regarding the sought after reimbursement for evaluations the DOE failed to show it had ever evaluated the student and parent acted reasonably in seeking out a private evaluation (T 70-71), and parent seeks reimbursement for evaluation as invoiced and tuition in the amount of (T 72-73)
Tuition amount sought was clarified to be (Ex V)
PARENT WITNESS
( ) reviewed his educational and professional background and testified as the student’s teach and teacher. (T 22-23)
described the as a “ . It's a group of about to about students, depending on the teacher's schedule, and we meet with them daily in the --in for about , in for about , and we also meet
.” (T 23)
sessions include
. (T 23-24)
also helps students with their
. (T 24)
is available
(T 25)
described student needs as and (T 25) which are worked on in sessions . (T 26)
Student has benefited and .
(T 26)
Student struggles with ,
. (T 26)
Student has benefited and has improved. (T 27)
Student is a . Student needs
. (T 27) Student has responded well to .
(T 28)
Student has . (T 28)
The helps with student “Yes,
” (T 28)
Student receives
. (T 28-29)
All teachers . (T 29)
Student
” (T 30)
helps
. (T 30)
Student uses an “
” (T 32)
meets the student’s current needs “
. (T 32-33)
PARENT WITNESS
( ) the student’s father testified at hearing.
confirmed the student is currently years of age, in attending . (T 35)
Student always had issues with
. (T 35-36)
describes the student progress at . “
…
He’s happy…He wants to go to school…” (T 37)
feels the student can do better with : “He's got to overcome some of his . He mentioned the .
.”
(T 38)
Use of the has helped. (T 38)
has benefited the student. “
” (T 39)
believes , with the , is meeting the student’s academic needs. (T 40)
Student
(T 40)
itself has helped with
. (T 41)
paid privately for evaluation of Dr. (T 42, Ex E & M)
obtained the evaluation after an IEP meeting, of 01/10/2014 (T 43), where he felt the student was not getting better. “It was clear that nothing, over the last or years, . So, we were really worried. (T 42)
“…we went back to the woman who did the first one; and from what we saw, there really wasn't any improvements, and it was really pretty scary when we got the results.” (T 43)
Parent identified letters to Committee on Special Education (CSE) to which he never received a response. (T 43-44, Ex C & D)
Parent testifies that at the 01/10/2014 IEP meeting it was clear to him that further testing and private testing were warranted. (T 44)
Parent has paid the student’s tuition in full according to the tuition schedule in place. (T 44-45)
Parent does not believe his child was ever tested by the DOE. (T 46)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as the student’s teacher. (T 51-53)
Student is in a class of students. (T 53)
Student is described as good at
. (T 53-54)
Student has
. (T 54)
Curriculum is
.” (T 54-55)
Student has benefited from . (T 55)
for the student. “
”
(T 55) This benefit’s the student. (T 55)
Witness continued that , is available for extra help,
. (T 56-58)
(T 58-59) Student
benefits from these interventions. (T 59)
Student has made progress and if he
(T 59-60)
will address . (T 60)
Student has progressed in that
. (T 60)
Student receives accommodations including: “
”
(T 61)
Student fits very well in the class. It is the
. (T 61)
Student is appropriately placed for the current school year. (T 61) is great for him, he benefits from a class size and a school, “
” (T 61-62)
DEPARTMENT OF EDUCATION POSITION
( ), District Representative, presented the DOE position.
DOE did not present a placement offer nor an IEP for the student for the 2014- 2015 school year. (T 7)
DOE conceded it did not offer the student a FAPE for the 2014-2015 school year. (T 7)
DOE contends the student’s current placement is not meeting the student’s needs as it does not offer nor , needs identified at the last IEP meeting. (T 17-18)
DOE also contends the student’s needs are not being addressed. (T 19)
DOE acknowledged it had no witnesses to offer in support of its position, beyond it submitted documents. (T 19)
acknowledged at previous hearing that the referred to documents had nothing to do with the 2014-2015 school year and the documents were excluded as irrelevant. (T 8-9)
stated that it is his understanding the student had an IEP since at least
. (T 49)
did not present any witness or otherwise contradict any evidence presented by the parent except in closing, noting parental concerns about a computer which should have been explained in more detail (T 63-64), that parent did not notify DOE properly regarding reimbursement of evaluation (T 64-65), and parent should have notified the previous school of any dissatisfaction. (T 66-67)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.
2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't.
of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June
10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent.
Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)
impeded the student'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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130]
[citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)
(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo
Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.
2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428
[W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No.07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington
v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).
"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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR
300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27,2010]).
The parent bears the burden of proof concerning the appropriateness of their unilateral placement.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). 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. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-
65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-
65).
Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373
F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y.
2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167
F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-
079; Application of the Dep’t of Educ., Appeal No. 07-032).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided
While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).
DOE IEP and PROPOSED PLACEMENT
DOE presented no offer of FAPE for the student for the 2014-2015 school year nor did it defend the last IEP created for the student. DOE representative conceded it did not offer the student a FAPE for the 2014-2015 school year. (T 7)
DOE representative did offer documents into evidence which were not accepted by the IHO. acknowledged at previous hearing that the referred to documents had nothing to do with the 2014-2015 school year and the documents were excluded as irrelevant. (T 8-9)
I find that the DOE failed to draft an appropriate IEP for the student for the 2014- 2105 school year.
I find the DOE failed to offer the student a FAPE for the 2014-2015 school year.
PLACEMENT with
Parent and witness detailed an understanding of the student’s needs and evidenced the appropriateness of the student’s current program. Program includes the and .
Parent evidence was not contested by any evidence presented by the DOE.
Evidence included identifying student needs such as: and
(T 25), ,
(T 26),
. (T 54)
Student needs are addressed in sessions by
(T 26) and
(T 26), (T
27),
(T 29),
(T 32), (T
54-55),
(T 56-58),
Student program includes a “
” (T 23) Sessions include
. (T 24)
needs are
. (T 26)
needs are met with class size (T 28) and student sees
. (T 40)
Testimony regarding student progress and appropriateness of the program included student progress in (T 27), (T 30 &
38), (T 37), has helped (T 38), benefits student (T 39), student has benefited
(T 55-56 & 59-60)
Testimony includes that the current program meets the student’s needs (T 32-33 & 40) and student is appropriately placed for the current school year. (T 61)
is great for him, he benefits from a class size and school, “
” (T 61-62)
I find the educational instruction at , including is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.
For the 2014-2015 school year I find , including offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits. Independent Educational Evaluations
The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEEs are defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). In addition to having an IEE considered by the CSE, parents have the right to have one IEE conducted at public expense if the parent disagrees
Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]).
IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *9- *10 [S.D.N.Y.
Sept. 29, 2012]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011]; Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C.
§ 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).
In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). Subject to certain exceptions, a school district must obtain informed parental consent prior to conducting an initial evaluation or a reevaluation (34 CFR 300.300[c]; 8 NYCRR
200.5[b][1][i]; see Letter to Sarzynski, 51 IDELR 193 [OSEP 2008]) and provide adequate notice to the parent of the proposed evaluation (8 NYCRR 200.5[a][5]).
In the instant case the DOE has not evidenced it has ever evaluated the student.
Parent testimony that he does not believe his child was ever tested by the DOE was not contested. (T 46)
DOE contends since the parent did not notify DOE properly regarding reimbursement of evaluation (T 64-65), and parent should have notified the previous school of any dissatisfaction, that parent is not entitled to this relief. (T 66-67)
paid privately for evaluation of Dr. (T 42, Ex E & M)
obtained the evaluation after an IEP meeting, of 01/10/2014 (T 43), where he felt the student was not getting better. “It was clear that nothing, over the last or years, had really improved. So, we were really worried. (T 42)
Parent “…we went back to the woman who did the first one; and from what we saw, there really wasn't any improvements, and it was really pretty scary when we got the results.” (T 43)
Parent identified letters to CSE to which he never received a response. (T 43-44, Ex C & D)
Parent letters provide notice the student may be unilaterally placed by the parent and seek for the DOE to draft an IEP and offer a placement for the student. To accomplish this the DOE would need current evaluations of the student. By not convening the requested meeting the DOE cannot reasonably contend that the evaluations are therefore not necessary.
Parent testifies that at the 01/10/2014 IEP meeting it was clear to him that further testing and private testing were warranted. (T 44) The IEP drafted includes information regarding the student, however, no current testing or information is included. For example, at the time the student was in and the document reflects New York State scores. (Ex B 1)
I find the DOE failed to act by not properly evaluating the student and failed to convene the IEP meeting which would have required recent testing. Parent, in response, obtained testing, Evaluation. No evidence is presented contesting the efficacy of the evaluation. (Ex E)
Evaluation includes
. Recommendations include (Ex E 22), (Ex E 23), (Ex E 25)
(Ex E 26) Identified student needs
are in most part addressed by the student’s current program in one form or another, as detailed hereinabove.
I find the parent is entitled to reimbursement for Evaluation he obtained in furtherance of seeking to identify student needs and provide an appropriate education.
Invoice presented in the amount of (Ex L)
Proof of payment provided. (Ex M)
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and corresponded with the DOE and communicated her concerns to the DOE. (Ex A, C & D)
identified student program contract documents (Ex F) and provided proof of payment to meet tuition payment schedule. Parent has paid the student’s tuition in full according to the tuition schedule in place. (T 44-45)
Sought after reimbursement includes:
Tuition
Combined Fees
Bookstore
TOTAL: (T 75-76, Ex F & IHO Ex V)
I find the parent is entitled to reimbursement in the amount of for tuition and related program expenses as indicated above.
ORDER
1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2014-2015 school year.
2. The parent shall be reimbursed for any payment made to for 2014- 2015 school year tuition, including the .
3. Total amount of tuition to be reimbursed to parent is
4. The DOE shall reimburse parent the cost of Evaluation, of Dr. , obtained by the parent in the amount of
5. DOE shall provide parent and with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.
6. This decision is subject to appeal and review by the State Review Officer. Dated: February 13, 2015
, 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
ENTERED 11/26/2014
A Hearing Request, 10/16/14,[6] pages
B IEP for the '13-'14 school year 1/10/14, 9 pages
C Parent letter to the CSE with proof of delivery, 2 pages
D Parent letter to the CSE with proof of delivery, 8/19/14, 2 pages
E Confidential Report of Evaluation, 3/25/14, 33 pages
F Tuition and Fees including Contract for '14-'15, 3/4/14, 4 pages
G Affidavit of Tuition for '14-'15, 9/14/14, 1 page
H Description of , undated, 2 pages
ENTERED 01/14/2015
I 7/23/14 parent letter to CSE with proof of delivery, 3 pages
J 12/11/14 affidavit of Mr. , Headmaster, 4 pages
K 10/31/14 first quarter report From , 1 page
L 3/25/14 invoice for evaluation from Dr. , 1 page
M 3/25/14 proof of payment of the Dr. evaluation, 1 page
DEPARTMENT OF EDUCATION
1 Excluded as Duplicative
2 Excluded as Irrelevant
3 Excluded as Irrelevant
4 Excluded as Duplicative
5 Excluded as Irrelevant
7 Excluded as Duplicative
8 Excluded as Duplicative
IMPARTIAL HEARING OFFICER
ENTERED 11/26/2014
I Notice to the parties of IHO appointment dated 10/17/2014, 3 pages
ENTERED 01/14/2015
II Grant of Extension of Timelines, 11/26/2014, 3 pages
ENTERED02/02/2015
III Notice of Appearance, 10/17/2014, 1 page
IV Grant of Extension of Timelines, 01/14/2015, 2 pages
V Email chain of 01/16/2015, 1 page
Footnotes
[6] Excluded as Irrelevant