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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name: ( )
District:
Hearing Requested By: Parent
Date of Hearing: March 3, 2015
April 21, 2015
April 30, 2015
Actual Record Closed Date: May 21, 2015
Hearing Officer: Linda S. Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 3, 2015
Attorney — Parents
Parents
District Representative, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 21, 2015
Attorney — Parents
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 30, 2015
Attorney — Parents
Parents
via Principal, — Parents
telephone
via and — Parents
telephone, via Social Worker from, via Teacher from
District Representative — DOE
On December 23, 2014, I was designated by the New York City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of the Student and the parent through his attorney, who initiated this hearing on December 23, 2014. Hearings were held on March 3, 2015, April 21, 2014, and April 30, 2015. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance dates were granted (IHO Exhs. 1-III). The current record close date is May 21, 2015 and the decision due date is June 4, 2015. Appended to the record are lists of persons in attendance and of documents submitted into evidence.
This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.[5] of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (“CSE”). The hearing was initiated the parents of the Student who challenge the November 6, 2014 review and recommendation of the CSE.
The parent unilaterally placed his son at the , (" ") a private educational program located in , New York. is a school lacking New York State Education Department approval. The Student's parent seeks an order that the DOE prospectively pay in the amount of (Exh. J at compensatory education for related services (Exh. A at 11), but did not present any evidence with regard to these claims or further asserted the claims. Accordingly, I conclude that these claims have been abandoned.
BACKGROUND
The Student is a who began living with in
August 2013. The Student , the date of his by the parent.
On February 3, 2014, the Student's case worker noted that the Student was in with and the requested an appropriate program after evaluations were conducted (Exh. D at 3).
On various dates in February, 2014, a psycho-educational was conducted by , when the Student was old. Ms. reviewed his educational history and noted that the Student received services through since his birth and had "
" (Exh. E at 3). Ms. noted that the Student
had a history of , , and (Exh. E at 4). Ms. noted that the Student's diagnoses as of April 2013 included and . She further noted that in June 2011, after the Student , the Student resided in the (Id.). The Student's was assessed on the and his score was , his score was , his score was and his score with a score of , in range (Exh. E at 10). Ms. further reported that the Student's prior evaluations demonstrated and his performance was not a valid estimation of his abilities (Exh. at 19). Ms.
assessed his abilities and found he scored level in , and , yet his ability to (Exh. E at 20). Ms. found that the Student was diagnosed with - , , and - (Exh. E at 19).
On April 21, 2014, the Student's social worker requested a change in placement from his placement at the as his " hindering his ability to learn" and requested "a school that might be better to meet his needs and has supportive services such as an " (Exh. D at 4).
On various dates in June and July 2014, a Evaluation was conducted when the student was in the . The evaluator reported that the Student had a history of difficulties and presented with issues (Exh. F at 9) and found that the Student had a (Exh. K at 3).
The CSE developed an Individualized Education Program (“IEP”) on November 6, 2014 and classified the Student with and recommended that he be placed in a New York State Approved Non-Public School in a with a student to staff ratio of and recommended related services of a week for ; a week for ; of week for and a week for (Exh. B at 10). The IEP indicated that the Student's level was and level was (Exh.
B at 14).
A summary was conducted on November 11, 2014, when the student was and the reporter noted that the Student had "
" (Exh. P at 1).
On November 19, 2104, the parent informed the CSE that because the CSE team members were unable to provide him with sufficient information about the recommended placement, he placed his child at beginning December 4, 2014 and requested tuition reimbursement for the 2014-2015 school year and transportation
(Exh. D at 5).
On December 10, 2014, the parent informed the Central Based Support Team
("CBST") after he visited the that the school did not provide the support that the Student required (Exh. D at 12).
On December 11, 2014, the parent informed CBST after he visited the that the school did not have adequate resources (Exh. D at 14).
On December 17, 2014, the parent informed the CBST after he visited in that the environment did not offer to enable his son to learn (Exh. D at 17).
THE DISTRICT’S CASE
The DOE representative conceded that a Free and Appropriate Public Education ("FAPE") was not offered for the 2014-2015 school year (trans. 21).
THE PARENT’S CASE
The parent, the Principal of , the Social Worker at , the Teacher at and the testified in support of the parent's request for prospective payment/reimbursement for the unilateral placement of the Student at for the 2014-2015 school year and the reimbursement for the Evaluation from the .
The Principal of , a holder of Master's degree specific to and a Master's degree in educational leadership, testified that the Student attended in December of 2014 and that was a school for students (trans. 133). She described the at had students aged and provided programs: (" ")
program and an Program called " " (trans. 105-
107;133). She stressed that there was a who consulted with the school (trans.
146) She stated that the Student was placed in a blended program as he had an opportunity to attend some classes with the " " students and some classes with the program students (trans. 111). She noted that the Student attended classes in the program with students and a New York State licensed special education teacher and (trans. 124;161). She further noted the Student had in so he started with the students, who were at level than the " " students (trans. 111). She stated that as the Student , he was able to
" " students
(trans. 112). She recalled that the Student had instances of as the result of and (trans. 115). She noted that the classroom teacher was able to recognize when the Student was and the teacher modified and provided support (trans. 116).
She recalled that after the , the Student only attended classes within the program with the students (trans. 123;169). She opined that the Student progressed in his ability to connect his classroom teacher and his and noted that the Student had sessions of and by a New York State certified provider and sessions of (trans. 127). She explained an occasion when the Student became and and (trans. 128). She described the approach used by included a process with the Student and staff who were able to provide the Student with to (trans. 131). She recalled that the Student during the first month at , and that she, the Student's teacher, and the Student's counselor collaborated with the Student's father to design a program to meet the Student's needs (trans. 136). She noted that the Student's teacher provided differentiated instruction and provided clear expectation and clear instruction and was able to redirect the Student and opined that the Student progressed in his ability and (trans. 140). She described the team meetings that occurred monthly included the classroom staff, the , the social workers and guidance counselors were ongoing to ensure that the Student was supported and that his goals were tailored for him (trans. 143) She recalled that the team conducted a (" ") and developed a
(" ") for the student (Exh. Q) in April 2015 (trans. 148). She opined that the Student progressed from December 2014 to date (trans. 149).
On cross the Principal of stated that there were students were (trans. 161). She described the were trained in (trans. 162), and there was on staff (trans. 164).
The testified that she assessed the Student and found that he was delayed in (trans. 176). She opined that as a result of her evaluation, she determined that the Student required ll student to staff ratio of in a setting (trans. 181).
On cross the opined that the Student was inappropriately placed last year in the in a class with a staffing ratio of
(trans. 180).
The Social Worker, a possessor of a Master's degree in clinical social worker and licensed in New York State as a social worker, testified that she was employed by for the past 1.5 years (trans. 187). She stated that she conducted a in the classroom (trans. 188). She noted that the class provided
(trans. 191). She opined that the Student progressed in his ability to by the weekly session with the school guidance counselor; however, after , she, and not the school guidance counselor, provided for the Student (trans. 192;204). She opined that the Student progressed in his ability (trans. 197), and listed the various methods developed to help the Student included the ability to and and that the Student's
. She recalled that the sessions with the , herself and morning check-ins with herself and the classroom teacher assisted the Student in his ability to (trans. 200). She stressed the check-ins determined how the Student was and the staff developed a plan to assist the Student and (Id.).
On cross the classroom teacher explained that the staff collected data daily to develop the (Exh. S) for the Student and the was developed by information provided from the staff in the team meetings and her observations (trans. 208).
The Special Education Teacher, a licensed and certified in New York State in regular and special education with a Master's degree in special education and employed by for 5 years, testified that she was the Student's classroom teacher in a class with a staffing ratio of and that the Student had his own designated
, and (trans.
215;252). She noted that students attend " " classes and so she taught with the Student and another peer so the staff to student ratio for was . She explained that she taught and (trans. 225). She described that the academics for the students was and that the Student enjoyed (trans. 226). She stated that the Student required support and in and that she taught , and in a of students (trans. 220-222). She recalled that she and the Guidance Counselor and Social Worker developed the and she described the included a to allow the Student to as a to encourage the Student to work independently on his (trans. 233-
234). She opined that the Student's improved and that the Student
(trans. 236). She related that the Student
(trans. 238). She
described
(trans.
140). She stressed that was developed for the Student to help him (trans. 243). She explained the collaboration of the related service providers for and who class to ensure the teaching staff coordinated their support for the Student (trans. 245). She opined that the Student progressed in his ability and his lessoned (trans.
249), and opined that was an appropriate placement for the Student (trans. 250).
The parent testified that he adopted the Student on June 25, 2014, after he received training in (trans. 28). He described
(trans. 33). He related that he visited the Student in 2013 at and (trans.
37). He described the Student as a person who (trans.
40). He stated that the Student
during the fall of 2014 and that and during the 2013-2014 school year (trans. 44). He recalled that on November 6, 2014, he attended the CSE meeting with representatives from the (trans. 51), and the team decided to remove the Student from the (trans. 55). He recalled that he requested a be provided for the Student as at the CSE meeting (trans. 64). He recalled that he signed a contract for the Student to attend on December 16, 2014, and opined that the Student was very happy to attend (trans. 69) and that the Student was not , (trans. 72). He noted that
(trans. 72). He
stated that the staff communicated with him daily and that after the visit with his mother, the Student became and (trans. 74). He described the plan that the Staff devised to address his which included , and noted that after in the Student was able to attend classes (trans. 76-79).
FINDINGS OF FACT AND DECISION
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M .S . ex rel. SS. V . Bd. of Educ. of the City Sch. Dist. of the City of Y onkers, 231 F.3d 96 at 103 (2d Cir. 2000); see W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s 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. (School Committee of the Town of Burlington v. Dept. Education, M assachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park , 459 F.3d 356 [2d Cir. 2006] cert denied, B oard of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].
The district representative conceded that the district failed to establish that FAPE was provided during the 2014-2015 school year (trans. 21).
The parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs Burlington, 471 U.S. at 370 (1985). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir.
2007).
The Second Circuit held that the private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). The issue of the private school's appropriateness depends on whether was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F. 3d at 364.
Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement Frank G., 459 F. 3d at 365. The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489
F.3d 115.
Testimony adduced at the hearing clearly demonstrates that the is providing a environment with a component and . is a school for students who required support for their needs. I find persuasive testimony and evidence that the special educational services for the Student met his and needs. I find provided the Student with instruction, and for appropriate . I find the Student was placed in a class with a total of students with a certified special education teacher and a and a designated for the Student. I find this staffing ratio matched the staffing ratio recommended by the and the program was placement with a class matched the program recommended by his
(Exh. P at 2). I find the services by the social worker and supported the Student in class and the team meetings in collaborating with the parent ensured that the Student progressed. I find the supervising staff met with the teachers and related service providers to review the program and made sure the Student's deficits were addressed. I find the related services providers were present in the classroom during the class to ensure that the strategies were carried out by the teacher. I find credible the testimony from the principal and teacher that the staffing ratio provided sufficient support for his needs which required and . I find the classroom teacher and related service providers provided special education services to meet the Student's unique needs by developing a , and to address issues and . The parent and the Principal and the Teacher and Social Worker testified that was appropriate because the Student had made progress. I credit this testimony. Testimony adduced at the hearing established that because of the level of adult support that the Student received at he had made progress during the 2014-15 school year. I credit this testimony. I find testimony adduced at the hearing established that the Student's special education needs were met by his teachers and related service providers at .
The DOE representative argued that failed to provide an appropriate setting for the Student because students were classified with and the specialist who provided was not experienced or certified to address the needs of children classified with an
(Exh. IV at 6,7). I find the parent's placement may not be held to certain requirements that Districts are held such as teacher licenses or LRE under Frank G. and G agliardo and the unilateral placement is a not perfect placement. M.S.. ex rel S.S. v Bd.
Of Ed., 231 F.3d 96 (2d Cir. 2000). I further find in A pplication of the New Y ork City Dept. of Edu., Appeal No. 09-017, the SRO held that the absence of SLT which may have been beneficial to the student did not warrant a finding that the private placement was inappropriate. The Second Circuit had repeated refused to find the lack of a recommended related service alone rendered a student’s private placement inappropriate. G.R. v. New
Y ork City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y.
Aug. 7 2009); Gabel v. Bd. of Educ., 368 F.Supp. 2d 313, 32 (S.D.N.Y. 2005).
Accordingly, I find the absence of related service provider who was a clinically trained provider of at did not render the private placement inappropriate. I find the sessions by the Social Worker with consultation of the on staff addressed the Student's needs.
Therefore, I find that the parents met their burden regarding the unilateral placement of the Student at for the 2014-2015 school year.
The DOE representative argued that the parent failed to exhaust all their administrative remedies and failed to send a timely 10 day notice as required by the regulations (Exh. IV at 14). I find that the parent established full cooperation by his
November 19, 2104, letter to CSE alerting the CSE that because the CSE team members were unable to provide him with sufficient information about the recommended placement, he placed his child at beginning December 4, 2014 and requested tuition reimbursement and transportation (Exh. D at 5). and the letters to CBST demonstrated (Exh. D at 12; 14; 17, ) his openness to an appropriate placement.
Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section
1412(a)(10)(c)(iii). I find the parent informed the CSE that he intended to continue to enroll the Student at for the 2014-2015 school year when no appropriate program or placement was offered after the most recent CSE meeting (Exh. D at 5) and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parents fully cooperated with the district to the best of their ability.
As to the claim for reimbursement for the private evaluations I find the parent argued that the DOE failed to evaluate the Student timely under the requirements of
303.303[b][2](Exh. V at 4). It was undisputed that the district did not timely evaluate the Student. Under the Jose P. Order, "parents of handicapped students who have been referred for evaluation and who have not been evaluated within thirty days may obtain an independent evaluation". I find the private evaluation was utilized by the district and I find the district did not file an impartial hearing request defending their failure to evaluate. 34 C.F.R. § 502 (b)(2)(i); 8 NYCRR 200.5(g)(1)(v). Based on the foregoing, I find the parents are entitled to reimbursement for the evaluations.
ORDER
Therefore, it is hereby ordered that the DOE shall reimburse the parents for the cost of the private evaluations (the evidence of such payment must be acceptable to the Department of Education) of for the evaluation and it hereby ordered that the Department of Education reimburse the parent for tuition at in the amount of (Exh. D) and prospective pay in the amount of for the 2014-2015 school year upon receipt of evidence of the parent's payment and proof of attendance and provide transportation.
Dated: June 4, 2015
LINDA S. AGOSTON, 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 ON MARCH 3, 2015
I Decision on Extension, 3/3/15, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON APPRIL 21, 2015
A Hearing Request, dated 12/ 23/14, 12 pp. Parent
B IEP for the 2014-2015 School Year, 11/6/14, 16 pp. Parent
C IEP Reconvene for 2014-2015 School Year, 1/9/15, 16 pp. Parent
D Various Parent Correspondence, 2013 – 2015, 19 pp. Parent
E Omitted
F Evaluation, 6/24, 6/ 26 and 7/8/14, 15 pp. Parent
G 2013-2014 Report Card, 1 p. Parent
H Student 30 Day Review and Classroom Schedule, 2/13/15, 6 pp. Parent
I Documents, 2014, 44 pp. Parent
J Contract, Affidavit & Proof of Payment, various dates, 5 pp. Parent
K Proof of Payment for & Dr. , various dates, 6 pp. Parent
L Income Tax Return 2013 tax year, 3 pp. Parent
M IEP, 8/ 14/13, 13 pp. Parent
N CSE Letter to CBST, 8/14/13, 1p. Parent
O Updated Evaluation Report, 4/9/13, 5 pp. Parent
P Summary, 11/11/14, 2 pp. Parent
Q and , 4/14, 14, 3 pp. Parent
1 Omitted District
2 Notice of IEP Meeting, 10/21/14, 3 pp. District
3 Meeting Minutes, 11/6/14, 3 pp. District
4 Social History Update, 9/17/14, 1 p. District
5 Classroom Observation, 9/24/14, 1 p. District
6 Quarterly Progress Report by , 10/14/14, 5 pp. District
7 Correspondence from , M.D.,
, 10/7/14, 1 p. District
8 Omitted
9 Level Assessment Parent Interview, 9/17/14, 3 pp. District
10 Defer to Central Based Support Team, 11/14/14, 3 pp. District
11 Psychoeducational Assessment, 4/18/14, 38 pp. District
12 Assessment, 10/31/14, 5 pp. District
13 , 10/31/13, 6 pp. District
14 Acceptance Letter from , 12/5/13, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 30, 2015
II Decision on Extension, 4/8/15, 1 p. IHO
III Decision on Extension, 4/30/15, 1p. IHO
R 2014-15 class schedule, 4/14/15, 3 pp. Parent
S , undated, 3 pp. Parent
POST HEARING SUBMISSION
IV DOE’s Brief, 5/21/15, 14 pp IHO
V Parent’s Brief, 5/20/15, 4 pp. IHO
Footnotes
[5] and reimburse the Student's parent in the amount of (Exh. J at 5) for the unilateral placement at the for the 2014-2015 school year. The parent seeks an order to reimburse the parent for the cost of the Evaluation by in the amount of (trans. 95;Exh.K at 3,5, 6). I note that the parent requested reimbursement for transportation, payment for the cost of related services and/or RSAs from December 16, 2014 through June 30, 2014 and requested