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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: March 2, 2015
Actual Record Closed Date: April 27, 2015
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 2, 2015
Esq. Attorney — Parents
Father — Parents
Mother — Parents
Teacher — Parents
(via telephone)
Teacher — Parents
(via telephone)
Teacher — Parents
(via telephone)
Teacher
(via telephone) — Parents
District Representative — DOE
FINDINGS OF FACT AND DECISION
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 October 24, 2014. (Exhibit A) A hearing was held on March 2, 2015, at the offices of the New York 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.
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 -year-old girl who has not been classified as a student with a disability by the DOE. She has been diagnosed with ,
During the 2013-2014 school year, by letter dated May 15, 2014, the Parents requested that the DOE’s Committee on Special Education (“CSE”) evaluate
(Exhibit C) On May 20, 2014, the Parents signed a consent form for the DOE to evaluate
(Exhibit E) The DOE’s CSE did not convene and did not develop an Individualized Education Program (“IEP”) for for the 2014-2015 school year. By letter dated September 9, 2014, the Parents again wrote to the CSE, referring to both their request for an evaluation and the consent form they had completed . (Exhibit D) They stated that, as of that date, there had been no CSE review and no program or placement offered for the 2014-2015 school year. They notified the CSE of their unilateral placement of at (“ ”), and their intention to seek reimbursement from the DOE for the tuition, including its program. By letter dated October 24, 2014, the Parents requested an impartial hearing challenging the DOE’s failure to offer a Free Appropriate Public Education (“FAPE”) to for the 2014-2015 school year.
(Exhibit A) The Parents are seeking reimbursement for the tuition paid to for the 2014-2015 school year, including the program. They are also seeking reimbursement for the Psychoeducational Assessment conducted from February to April
2014. (Exhibits B and I)
POSITIONS OF THE PARTIES
THE DOE’S CASE
The DOE concedes that it failed to offer a FAPE to for the 2014-2015 school year. (T. 5-6)1
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 appropriateness of the Parents’ unilateral placement of at was related to her deficits in . The DOE argued that, although there is documentation of ’s struggles in the area of , along with various other areas, there was insufficient evidence to demonstrate that her needs were addressed by the program. The DOE did not raise any issues with regard to any other aspect of the program.
The DOE also addressed, in its closing argument, that the Parents’ request for reimbursement for the privately obtained Psychoeducational Assessment should be denied. The Psychoeducational Assessment was conducted prior to the Parents’ request for an evaluation by the CSE.
THE PARENTS’ CASE
Citations to the transcript will hereafter be identified by a “T.” followed by the page number.
is ’s mother. She testified that attended public school from through . (T. 8) had a beginning in the . (T. 9) is now for the 2014-2015 school year at . (T. 9)
is ’s teacher at . She is in the class for . He explained that the track in which she is placed allows her to move at a pace, and to cover material, as her needs dictate. There are in the class; approximately of them have a learning disability. Mr. states that absolutely benefits from the smaller class size. She sits in the front row and is able to stay on task. Mr. is able to give , -on- attention when she needs it during class. Mr. is also available to meet -on- with his students outside of class. (T. 14-15; 24-25) Mr. described as having made good friends in the class. (T.26) Mr. described ’s educational deficits and how each is addressed within his class. Those areas of weakness include:
. (T. 15-
16) Mr. described the ways in which those deficit areas are addressed. To help her with the . To support ’s challenges, Mr. assigns a lot of regular assignments and offers
To strengthen ’s skills, including
. Mr. described the benefits to of the methods and strategies employed, and the improvement he has observed in ’s skills since the beginning of the school year in all areas. (T. 19-24)
is a and history teacher at . Although he is ’s teacher, his testimony was related to the school overall. He described several aspects of the school. is accredited at the highest level, through the . The school has grades and, currently, students are enrolled. The class size usually ranges from students in the , grades . (T. 29-30; 37) Mr. explained the tracking system used at . It is used so that students are placed with “ ” There are tracks for classes in the . Approximately of ’s students have a . Placement in the program is based on a student’s needs, as reflected in their IEP, or from a evaluation. All teachers are certified in special education. The school’s program allows students to receive individual help from a teacher. Approximately third of ’s students are also in the program. Students in the program meet with their teacher for approximately an before each school day and for approximately at the end of each school day. Those periods are in a . They also meet -on- with their teacher a week. (T. 31-33)
In addition to the special educators in the program, the school also has a school psychologist and a school social worker on staff. (T. 40) Mr. described the school’s use of the program. Teachers, parents and students access the system which contains
. (T. 33-34) Mr. described the accommodations offered at for learning disabled students. They include . Finally, Mr. described the
. (T. 34-35)
is ’s teacher and is also a teacher at . The class focuses on building the skills necessary to be successful readers and writers.
Students are generally placed in the class based on their evaluation. was placed in the class due to her and . There are students in the class, all with learning disabilities, and it is an appropriate cohort of students for benefits from the class because it allows her to focus on developing the skills that she needs at her own pace. Ms. is also available to meet with , -on- , outside of class. Ms. described ’s primary educational deficits, which include . She explained that has strong literal comprehension, but is lacking the analytical component. She has difficulties making
.
To address those deficits, Ms. focuses on close , gives the students explicit instruction on how to make a connection, and models the process for the students. Ms.
described how has benefited from the activities in class and has improved throughout the school year. Ms. repeats directions to multiple times and allows her to ask questions about directions. can now recognize when she needs clarification, she is asking questions, and she is using strategies like the instructions on her own. With her vocabulary, chooses words that are not overly descriptive or higher-level words. She is assisted in identifying words in a passage that are not very descriptive, and then using the thesaurus to look for more appropriate and stronger synonyms. She now uses the thesaurus as a resource for her own . In her , can go too far with unnecessary detail, and her is not sufficiently analytical. The exercises in making connections and drawing inferences and conclusions help her to be able to insert those into her . Ms. also works on analyzing an author’s to discuss what the author did that was effective. In addition, using
“ ” Ms. stated
that the methods and strategies used in the class have benefited and have resulted in improvement throughout the school year. (T. 43-52)
is a teacher and a history teacher at . She is ’s teacher for the 2014-2015 school year. Her students who meet with her in the to prepare for the day and go over any issues they may have had with homework. They also meet in the to address any issues they may have had with academics in the classroom. Ms. also meets with each student a week. Ms. communicates with the content area teachers at least times a week about her students. Ms. described ’s struggles with
. To address
comprehension and vocabulary, Ms. has worked with on annotating on the side while . She also has her skim a passage before it to look for unfamiliar words to discuss before she reads. The annotation helps highlight the main idea and supporting details, and Ms. helps simplify the passage. Ms.
helps with her executive skills, such as organizing her assignments for the day and time management for homework. Ms. goes over ’s planner with her, which has a color-coded system, to plan for homework at night and, in preparation for exams, helps her make an -by- schedule for studying. Ms. also explained how she works with on planning and organizing her , and how they edit and revise together. She refers to it as the “ ” With regard to ’s , which is sometimes due to her not knowing something. Ms. calms her down and they work through it with their . has seen the school counselor occasionally, who is available to her as needed. ’s has been alleviated by all of the support she gets, and by having become comfortable in her small classes and with Ms. . (T. 54-63)
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 to (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. , 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, was reasonably calculated to allow to make meaningful progress and to address ’s individual needs. In fact, made meaningful progress through her participation in the complete program. ’s environment 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. third 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. 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. 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 record reflects the Parents’ repeated, yet futile, requests for the DOE to evaluate and provide her with special education services.
Despite the Parents’ efforts, the DOE did nothing. The DOE failed in its obligations to and concedes such failure.
The Parents are requesting reimbursement for the Psychoeducational Assessment conducted from February to April 2014. This evaluation was obtained by the Parents over months before their initial request to the CSE and their subsequent consent to evaluate Although the CSE failed to conduct an evaluation, or otherwise proceed, following the Parents’ request, at the time they obtained the Psychoeducational Assessment , the Parents could not have known whether the CSE would conduct an evaluation. While an Independent Educational Evaluation (“IEE”) is not only reimbursable if it is sought in response to a CSE-obtained evaluation with which a parent disagrees, it can also be reimbursable under the circumstances of a CSE failing to ever conduct an evaluation, which is, in fact, a worse situation, the Parents are not entitled to reimbursement under the facts presented herein.
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]). IEE’s 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 with an evaluation conducted by the district (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]). The United States Education Department's Office of Special Education Programs has stated that it would be consistent with federal regulation to allow reimbursement for an IEE when the district failed to provide an evaluation in compliance with the IDEA (see Letter to Anonymous, 55 IDELR 106 [OSEP 2010]). State regulations require school districts to complete the individual evaluation of a student within 60 calendar days from the date of receipt of parental consent to evaluate the student (8 NYCRR 200.4[b][1]; see 20 U.S.C. § 1414[a][1][C][i][I]; 34 C.F.R. §
300.301[c][1][i]). There is no dispute that the CSE did not evaluate within the prescribed time limits, in violation of the IDEA's procedural requirements (20 U.S.C. §
1414[a][2][B][ii]; 34 CFR 300.303[b][2]; 8 NYCRR 200.4[b][4]). However, the evaluation for which reimbursement is requested, was conducted months before the CSE received a request for an evaluation. Clearly, it was not sixty days after the request was made. The chronology indicates that the Parents’ were not responding to a failure of the CSE to conduct an evaluation at the time they obtained the Psychoeducational
Assessment. While they had the right to privately obtain and fund the Psychoeducational Assessment for , the evaluation was obtained prematurely, with respect to reimbursable IEE’s, and is, therefore, not reimbursable.
The Parents’ request for reimbursement for the “combined fee” and “bookstore fee” noted on the school contract are denied due to the absence of any evidence specifically regarding what those fees represent, and whether they should be reimbursable. The face of the contract is not conclusive.
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. Reimbursement for the cost of the Psychoeducational Assessment is denied.
Dated: May 13, 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, 10/24/14, 7 pages
B. Psychoeducational Assessment, Feb-Apr 2014, 15 pages
C. Parent correspondence to CSE, 5/15/14, 1 page
D. Parent correspondence to CSE, 9/9/14, 1 page
E. Consent to Evaluate, 5/20/14, 1 page
F. Schedule, Fall 2014, 1 page
G. School Contract, 8/17/14, 4 pages
H. Proofs of Payment, School Affidavit, Credit Card Statement, various dates,
3 pages
I. Proofs of Payment Psychoeducational, various, 3 pages
J Report Card, 1/6/15, 1 page
K. Social History Evaluation, 12/13/11, 2 pages