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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: January 31, 2014
May 7, 2014
June 5, 2014
October 24, 2014
November 6, 2014
February 6, 2015
Actual Record Closed Date: April 10, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date (T) Paralegal for Parent PARENT 01/31/14 Attorney PARENT 05/07/14 Parent PARENT 05/07/14 Parent PARENT 05/07/14 Attorney DOE 05/07/14
Dr. Principle DOE 05/07/14 Attorney PARENT 06/05/14 Parent PARENT 06/05/14 Parent PARENT 06/05/14 Attorney DOE 06/05/14
CSE Psychologist DOE 06/05/14 Attorney PARENT 10/24/14 Parent PARENT 10/24/14 Parent PARENT 10/24/14 Attorney DOE 10/24/14 (T) CSE Psychologist DOE 10/24/14 Attorney PARENT 11/06/14 Parent PARENT 11/06/14 Parent PARENT 11/06/14 (T) VP of Finance and PARENT 11/06/14 Administration (T) Division Head of PARENT 11/06/14 (T) Teacher PARENT 11/06/14 - (T) Teacher PARENT 11/06/14 Attorney DOE 11/06/14 Attorney PARENT 02/06/15 Parent PARENT 02/06/15 Parent PARENT 02/06/15 Attorney DOE 02/06/15 Paralegal DOE 02/06/15
On November 22, 2013, I was appointed as the Impartial Hearing Officer (“IHO”)
to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an (19) year old student attending a private school and the New York City Department of Education (“DOE”) - District: 02, concerning the student’s special education program. I was appointed after the recusal of at least one other IHO.
After adjournments were granted on consent or for cause, the impartial hearing was held on January 31, 2014, May 7, 2014, June 5, 2014, October 24, 2014, November 6, 2014 and February 6, 2015.
The parties opted to submit written closing statements which were due and received on March 3, 2015. A delay in the prosecution of the case was caused by the Parent’s attorney suddenly departing from his firm. On February 26, 2015, the parties requested additional time, until March 27, 2015, to submit their written closing statements. On March 20, 2015, the Parent’s counsel, with the consent of counsel for the DOE, requested additional time to submit written closing statement due to “personal matters. The parties’ written closing statements were actually received on April 10, 2015.
A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated March 9, 2012 is procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student in a private school for the 2012-2013 school year. (Id.) The Parent seeks reimbursement for the student’s tuition, room and board and related services for the 2012- 2013 school year.
THE DOE’S CASE
The DOE argues that the student was offered a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year. (T-25) The agency further argues that the recommended DOE school was available for the student and could have implemented his Individualized Education Program (“IEP”). (T-26) Finally, the DOE argues that the student’s private school for the 2012-2013 school was an inappropriate placement and that the “equities” favor the DOE because the Parent entered into a contract with the private school prior to visiting the recommended DOE school and did not make the Committee on Special Education (“CSE”) aware of the same. (T-29)
The DOE called (2) witnesses to testify on its behalf and submitted (20)
documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent “reserved” on making an opening statement until the DOE rested on its case-in-chief. (T-29 & 157) As noted above, the Parent’s Due Process Complaint (“DPC”) alleges that the student was denied a FAPE for the 2012-2013 school year because his relevant IEP dated March 9, 2012 is procedurally and substantively flawed.
(DPC) After numerous visits by the Parent to the DOE recommended school, she unilaterally placed the student at the private school for the 2012-2013 school year. (Id.)
The Parent called (5) witnesses to testify on her behalf and submitted (21)
documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
Two 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See 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] and Perricelli v. Carmel Cent. Sch.
Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])
Under the IDEA, if a procedural violation is 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379)
Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.
2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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; E.G. v. City Sch. Dist.
of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and 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 accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.
07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and
SRO No. 08-087)
The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 370-
71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra
v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S.
at 12, 15 and 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 and 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-
105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See 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." (See 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 specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at
364-65).
The IDEA allows that tuition 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 child 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." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 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 in the public schools." (See Greenland Sch.
Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.
2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty
v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-
120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters."
(See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.
(See 20 U.S.C. § 1412[a][10][C][iii]; 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] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
I first turn to the question of whether the student’s March 9, 2012 is procedurally sound. The Committee on Special Education (“CSE”) team producing the IEP must contain the required membership under law. Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
A review of the student’s March 9, 2012 IEP reveals that his CSE team was composed of a related service provider/special education teacher, the student’s father and mother, a school psychologist also acting as the district representative, a parent member and the student’s private school teacher participating by telephone. (Transcript dated 10/24/14 - T-
28, 35, 39 & D-1) The CSE meeting lasted approximately (2) hours, but the student’s private school teacher participated by telephone for only approximately (20) minutes. (Transcript dated 10/24/14 - T-44-5) Accordingly, I find that the student’s CSE team March 9, 2012 was duly composed under law.
Also as noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Supra) Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2]
and 8 NYCRR 200.4[b][4]) ]) The procedure for a reevaluation requires that a group that includes the CSE and other qualified professionals, as appropriate, conduct an initial review of the existing evaluation data including information provided by the student's parents, current classroom-based assessments and observations, and observations by teachers and related service providers. (See 34 C.F.R. § 300.305[a][1] and 8 NYCRR
200.4[b][5][i]) Such review may take place without a meeting. (See 8 NYCRR
200.4[b][5][i]) Based on that review, and based on input from the student's parents, the CSE must then identify what additional information, if any, is needed to determine whether the student continues to have an educational disability, the student's present levels of performance, whether the student needs special education services, or whether any additions or modifications to the special education services are needed. (See 34 C.F.R. § 300.305[a][2] and 8 NYCRR 200.4[b][5][ii]) If additional data is needed, the school district shall administer tests and obtain other evaluation materials as may be needed to produce the needed data. (See 34 C.F.R. § 300.305[c] and 8 NYCRR
200.4[b][5][iii])
Here, the student’s March 9, 2012 CSE team had access to the student’s evaluations that were dated, but nevertheless fall within the three year mandate for valid evaluations.
[ Evaluation dated June 19, 2009 (D-7), Classroom Observation dated November 4, 2010 (D-8), a Social History Update dated August 10, 2009 (D-9), a
Assessment dated January 25, 2010 dated January 25, 2010 (D-10), a
Test dated October 13, 2010 (D-11), a Assessment dated August 10, 2009 (D-13), a Re-Examination dated December 8, 2008 (D-14) and the private school’s progress reports from December of 2011 (D-15)]
However, the CSE instead relied almost exclusively upon the information it received from the student’s Parents and his private school in making its recommendation. (Transcript dated
10/24/14 - T-51-4, 57-9 & 100) It is important to note that the student’s private school teacher, arguably the person with the most accurate information regarding his present performance levels, only participated in the (2) hour meeting, by telephone for only approximately (20) minutes. (Transcript dated 10/24/14 - T-44-5) What’s more, the DOE school psychologist testified that the private school teacher said that the student’s private school test scores were “approximate” and that the student’s abilities were “underestimated” and not accurate, “Because students tend to perform consistently more accurately in the classroom with the teacher that they’re familiar with than they would at a one-time assessment.” (T-132)
The DOE school psychologist testified that the CSE team received the results of various test of the student performed by the private school “at the beginning of that school year”, and incorporated those results in the “present levels of performance” section of the student’s IEP. (Transcript dated 10/24/14 - T-49) Those test included the Assessment and Evaluation where the student scored a ( ) and ) grade point equivalent respectively, the which is an “informal assessment” that showed that the student was estimated to be of the ( ) level in and “ grade, the “ ” assessment that the student achieved a ( ) level, the where the student achieved level of ( ), and a Test of the student’s skills, where the student scored in the “ ” (Id.) The student was a ( ) year old ( grader at the time of the testing. (Id. @ T-55) The DOE school psychologist, who also acted as the district representative at the CSE meeting, testified that she and everyone else at the meeting did not feel the team needed any additional data from the student. (Id. @ T-142)
The DOE choose not to use its own evaluations in making its program recommendation, which while dated nevertheless fall within the laws three year mandate.
The private school’s testing relied upon by the DOE, shows the student to be performing significantly below grade level.
A school 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. (See 34 CFR 300.303[a][2] and 8 NYCRR 200.4[b][4] - emphasis added) A CSE may also 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]) What’s more, a school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (See 20 U.S.C. § 1414[b][3][B], 34 CFR 300.304[c][4] and 8 NYCRR 200.4[b][6][vii] - emphasis added)
The 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. (See 34 CFR
300.304[c][6] and 8 NYCRR 200.4[b][6][ix]) Additionally, New York State regulations require a CSE to “arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation.” (See 8 NYCRR
200.4[b][4], 20 U.S.C. § 1414[a][2][A] and 34 CFR 300.303[a] - emphasis added)
Under the circumstances, where the student is performing level, where the data available to the CSE is “underestimated” and “not an accurate reflection” of the student’s abilities, and where the DOE’s assessments are now almost past their three year viability, it is unconscionable that the student, who is performing level, was not reevaluated by the CSE. I find that the CSE team in this case abdicated its mandate and responsibility to reevaluate the student. Not only did the CSE team in this case fail to reevaluate the student, it even failed to utilize its own dated evaluations in creating it program recommendation. It is self-evident that the resulting IEP, would be
“inappropriate” and substantively flawed. Under the circumstances, the CSE failure to reevaluate could not result in an IEP that “accurately reflects the results of evaluations to identify the student’s needs”, as the law requires. (Supra) I find the CSE’s failure to reevaluate the student fatal to the DOE’s claim that it offered the student a FAPE for the 2012-2013 school year. An offer of a FAPE cannot arise from where the student’s academic achievement is so poor, yet he has not been evaluated in almost three years, so that an IEP can be created that specifically addresses that poor performance.
Accordingly, I find that the DOE failed to offer the student a FAPE for the 2012-2013
school year.
I next turn to the question of whether the student’s private school placement was appropriate for the 2012-2013 school year. Here, the Parent need only demonstrate that the private school placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo and Frank G., Supra)
The student in this case is described as and , but having in terms of skills and in . (T-171) The student was working level in areas and needs support to , , to make progress in and in and . (Id.) He has skills and needs support with , and . (T-171-2) The student needs support, and . (T-172) The student’s private school “ ” teacher testified that he needs instruction and support. (T-314)
At the private school, the student attended “ ” classes with anywhere from to students. (T-170) The student was placed with other students with similar levels and learning profiles. (Id.) The private school also provides to prepare students . (T-196) The private school always has a teacher and a assigned to the student’s classes to provide , and provide him with support . (T-173) instruction is provided through the use of a , and wherever possible. (T-182-3) instruction is used every day. (T-180) The student received instruction in the “ ” where the teacher would or . (T-181) The “ ” starts with , then with a teacher , then . (T-326) During instruction, the assistant teacher would sit with the student and and provide them with and . (T-325-6) The student receives related services of , and at the private school. (T-173 &199-204)
The student’s private school teacher testified that all of the student’s teachers noted that the student maintained , needed less , was making progress with his goals and was able to move forward with the curriculum. (T-188) The student was and . (T-206) The student’s mother testified that has improved and he is incorporating the . (T-366-7) The student’s and skills have improved. (T-333-4) The private school’ summer program prevents the student from regressing with the teachers , providing the student with direct instruction, while integrating his related services into the student’s day and continuing his , his skill opportunities and education. (T-215)
The record shows that the private school provides the student with educational instruction that addresses his needs and also provides his related services which are necessary for him to benefit from instruction. (Supra) Accordingly, I find that the student’s private school placement was appropriate for the 2012-2013 school year.
There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parents attended the CSE meeting, provided access to the student’s private school teachers and records and visited the recommended DOE school on numerous occasions. (T-220 & 270-1) The Parent’s signing of the private school contract prior to their receipt of the DOE’s offer does not bar an award on their behalf for equitable considerations. (See A.R. v. New York City Dept. of Education, 12 Civ. 4493 (PAC), U.S.
Dist. Court (S.D.N.Y. 2013), Lexis 135855) I also find that the private school contract is a binding enforceable contract. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that they have met their burden under Schaffer to prevail in their request for tuition reimbursement.
NOW therefore, it is hereby
ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or pay the cost of the student’s tuition at the private school for the 2012-2013 school year; and it is further
ORDERED that the DOE shall immediately reevaluate the student to comprehensively identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which he has been classified; and it is further
ORDERED that the CSE shall forthwith reconvene upon the completion of the student’s comprehensive evaluations to produce a new IEP for the student that considers all of the student’s available evaluations and any related services that he should receive for the 2015-2016 school year.
Dated: April 23, 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 RECORD
Number/Letter Title Dated For # of Pages
A Impartial Hearing Request 11/19/13 PARENT 11
B Letter from Parent to Ms. 06/15/12 PARENT 02
and Mr.
C Letter from Parent to Ms. 07/11/12 PARENT 04
and Mr.
D E-Mail Exchanged Between 08/09/12 PARENT 07
Parent and Ms. and
E Letter from Parent to Ms. 10/01/12 PARENT 03
And Mr.
F 2012 PARENT 04
Progress Report
G 11/2012 PARENT 21
Progress Report 1st Review
H Progress Report 3/2013 PARENT 22
2nd Review
I Progress Report 6/2013 PARENT 23
3rd Review
J Program Description Undated PARENT 03
K Program Description Undated PARENT 05
L Curriculum Outline 2012 PARENT 01
And Schedule
M Schedule 2012/2013 PARENT 01
N Attendance Detail 09/19/12 PARENT 01
O Attendance Detail 06/26/12 PARENT 01
P Enrollment Contract 06/13/12 PARENT 02
Q Enrollment Contract 08/31/12 PARENT 02
R Affidavit of 11/20/13 PARENT 01 S Tax Return Undated PARENT 04
R Amended Affidavit of 05/07/14 PARENT [05]
T IEP Annual Review Report 03/09/12 PARENT 03
1 IEP 03/09/12 DISTRICT 24
2 IEP Attendance Page 03/09/12 DISTRICT 01
3 IEP Meeting Minutes 03/09/12 DISTRICT 08
4 Final Notice of 06/11/12 DISTRICT 01
Recommendation
5 WITHDRAWN UNDATED DISTRICT 00
6 Due Process Response 11/27/13 DISTRICT 04
7 06/19/09 DISTRICT 05
Evaluation
8 Classroom Observation 11/04/10 DISTRICT 01
9 Social History Update 08/10/09 DISTRICT 02
10 Assessment 01/25/10 DISTRICT 02
11 10/13/10 DISTRICT 02
Test
12 Related Services Change 12/20/10 DISTRICT 08
Form
13 08/10/09 DISTRICT
14 0/08/08 DISTRICT 12
Reexamination
15 12/2011 DISTRICT 35
Progress Report
16 Notes from . 03/19/12 DISTRICT 04
17 WITHDRAWN UNDATED DISTRICT 00
18 WITHDRAWN UNDATED DISTRICT 00
19 Letter to Parent Regarding 09/05/12 DISTRICT 01
FNR
20 WITHDRAWN UNDATED DISTRICT 00
II Motion to Quash from UNDATED IHO
Private School
Footnotes
[05] Assessment