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: 07
District:
Requested By: Parent
Date of : August 21, 2015
Actual Record Closed Date: September 7, 2015
Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 21, 2015
Attorney — Student
Parent/Mother — Student
Program Administrator — Student
District Representative — DOE
INTRODUCTION
On 07/13/2015, I was appointed the Impartial Officer (“IHO”) by the Department of Education’s Impartial Office to conduct an impartial 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.
This matter was instituted by the impartial request dated 07/07/2015 alleging that the Department of Education (DOE) failed to provide an offer of a Free Appropriate Education to the student for the 2015-2016 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2015-2016 school year. (Ex M 1-2)
Relief sought includes funding or reimbursement for unilateral placement at ( ) as well as which include a and accommodations. (Ex M 3)
BACKGROUND
Most recent, and detailed, Individualized Education Program (IEP) of
04/29/2015 (Ex B), includes, classification of , (Ex B 23).
THE PARENT’S POSITION
( ) presented the parent’s position.
outlined the parent position in his opening statement, and as indicated in request. (Ex M) Parents participated in IEP meeting of April 2015 where a recommendation was made to defer the matter to the Central Based Support Team (CBST) for placement. (Ex B) DOE has failed to offer the student placement for the 2015-2016 school year, parent ‘s have unilaterally placed the student appropriately (T 8), and parent is entitled to prospective tuition payment and funding for as well as . (T 9 & Ex M)
Parent placement at provides to the student and the
. (T 11)
PARENT WITNESS
( ) reviewed her educational and background and testified as the program administrator. (T 13-15)
school is “…a new, small school for children with
…it has class sizes of , and it supports them in a small environment with our which essentially means it fully integrates all of the related service disciplines as well as…and special education.” (T 14)
identified the Program Description as accurate. (T 15-16, Ex A)
teaches the subject student. (T 16)
had first met the student in 2013 at and provided instruction to him for a brief time over the summer. (T 17)
describes the student as: “… . He's , .
.” (T 18)
Student is approaching a
. (T 18)
Student ”. (T 18-19)
Student is at and understands
. (T 19)
Regarding , he is: “ , but he's still able to when they're presented through movement in his
. He shows
(T 19-20)
In the area of : “…he can
(T 21)
Regarding : “…he's able to . When you
kind of present them in his
. (T 21)
Regarding “…
.” (T 21)
Student include: “…
.” (T 21-22)
Student is a
( ). (T 22)
is familiar with the student’s 2015-2016 IEP and it is being implemented at . (T 22-23, Ex B)
IEP goals and short term objectives are utilized by in all areas, including , , , and . Data is collected and progress measured for each goal. (T 35-36)
identified student’s summer and regular year schedule. (T 23, Ex C & D)
, except are delivered in summer while all are delivered during the regular school year. (T 24, Ex C & D)
on the schedule was clarified to be . (T 24, Ex C & D)
is utilized with the student and is:
.” (T 25)
Student ratio is and . This ratio is important for the student:
“…because students with or students like require a
.” (T 26)
also uses with the student which is or . “
is the
(T 27)
Student has a integrated into the student’s instruction to serve as a communication facilitator. (T 28)
program could not be implemented in a setting larger that . (T 29)
setting is the minimum the student requires to obtain an educational benefit. (T 30-31)
is provided at . Cost is not included in tuition. (T 31) It is provided as per the IEP mandate. (T 32)
Provider affidavit is in evidence as Exhibit E.
, , , and are all provided by licensed individuals (T 33) at , via s. (T 34)
Student attendance is taken and reflected in attendance record. (T 37, Ex H)
Student’s parents and signed tuition contract. (T 37-38)
Tuition enrollment contract is entered as Exhibit. (T 38, Ex I)
Tuition for the , 2015-2016, is . (T 38)
Payments have been received, via checks. (T 38-39, Ex J)
Student is a school employee. (T 40)
Parent paid directly for the summer, but for the school year the will be paid by . (T 40)
is an appropriate placement for the student: “…because it meets the requirements of his IEP which is the requirements he needs in order to make meaningful progress and learn. If he--if the requirements of the IEP were not met, he would not be able to learn.” (T 41)
PARENT WITNESS
( ), the student’s mother, described her background. (T 43-44)
Her child is , , , , has
(T 44-46)
participated in IEP of 04/29/2015. (T 46 & 48, Ex B)
authorized the DOE to evaluate her child prior to the IEP meeting. (T 46-47)
provided the DOE with documents from the student’s school prior to the IEP meeting. (T 46)
is in agreement with the IEP related service recommendations, the DOE deferred the student to CBST, and a placement was never offered by the DOE for the 2015-2016 school year. (T 48)
Parent received a letter in July assigning a case manager. (T 48, Ex K)
There has been no further communication regarding placement. (T 49)
enrolled her child at . (T 49)
believes is an appropriate placement. (T 49)
Placement is appropriate because: “…the ratio is particularly appropriate because he is . He has a . His is and his is …so he
.
.” (T 50)
Student also needs a program: “…
.” (T 50)
Parent signed a tuition contract with . (T 50, Ex I)
Parent submitted checks to . (T 52, Ex J)
Parent does not have the means to pay the student’s tuition. (T 52)
Parent identified . (T 53, Ex L)
Parent financial status has not changed since 2014. (T 54) “…I have no reason to believe that for 2015 for the rest of this year that there will be any changes in terms of finances.” (T 55)
In the past student had limited travel time. (T 57)
Student requires limited travel time due to: “… and he doesn't have a
” (T 58)
DEPARTMENT OF EDUCATION POSITION
( ), District Representative, presented the DOE position.
The DOE submitted no documentary evidence (T 7) and when asked for an opening statement responded: “No. The District is going to rest.” (T 8)
When asked if the DOE had anything to say regarding the parent’s position, the response was: “It has nothing to say.” (T 9)
DOE choose not to question any parent witness.
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 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 "' '" 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;
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 , 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 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 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
The district presented no evidence, made no statement, and choose not to examine any witness. (T 7-8)
When asked if the DOE had anything to say regarding the parent’s position, the response was: “It has nothing to say.” (T 9)
DOE offered no placement for the student, beyond its deferral to CBST.
DOE failed to offer the student a FAPE for the school year in question and elected to not submit any evaluative information or assessments of the student as evidence of the district's view of the student's special education needs into the hearing record. The district has effectively abandoned any opportunity to assert its position regarding the student's special education needs and the extent to which the parent's unilateral placement either addressed or failed to address those needs.
The question of whether was an appropriate unilateral placement is principally determined by whether the program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-
89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365).
As discussed below, the evidence in the record submitted by the parent in this case was sufficient to identify the student's unique needs and to satisfy the parent's burden to establish the appropriateness of the student's unilateral placement at for the 2015-16 school year.
I find that the DOE failed to offer the student a FAPE for the 2015-2016 school year.
PLACEMENT FOR THE 2015-2016 SCHOOL YEAR
Uncontested testimony presented at evidence an understanding of the student’s needs and the appropriateness of the program for the student for the 2015-2016 school year.
Such testimony included:
school is “…a new, small school for children with
…it has class sizes of , and it supports them in a small environment with our which essentially means it fully integrates all of the related service disciplines as well as…and special education.” (T 14)
Student is approaching a
. (T 18)
Student is at and understands
. (T 19)
Witness provided details regarding needs (T 19-20),
(T 21), (T 21), social development (T 21), (T
21-22), and (T 22).
Student’s 2015-2016 IEP and it is being implemented at . (T 22-23, Ex B) This includes IEP goals and short term objectives. (T 35-36)
is able to deliver , except for summer . (T 24, Ex C & D)
As recommended by the IEP, the Student ratio is and . (T 26)
also uses with the student with a ratio as low as .
(T 27)
Student has a integrated into the student’s instruction to serve as a communication facilitator. (T 28)
is provided at . Cost is not included in tuition. (T 31)
, , , and are all provided by licensed individuals (T 33) at , via s. (T 34)
Student attendance is taken and reflected in attendance record. (T 37, Ex H)
Testimony evidenced is an appropriate placement for the student:
“…because it meets the requirements of his IEP which is the requirements he needs in order to make meaningful progress and learn. If he--if the requirements of the IEP were not met, he would not be able to learn.” (T 41)
Parent also evidenced an understanding of her student’s needs and testified as to the appropriateness of . (T 44-46)
believes is an appropriate placement because: “…the ratio is particularly appropriate because he is .” (T 49)
Documentary evidence supports the parent position.
Program includes service to students with “
” (Ex A 1), , , (Ex A
2); and schedule with (Ex C & D).
I find the educational instruction at 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 2015-2016 school year I find offers 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.
must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see , 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for
," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as , the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch.
Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
In the past student had limited travel time. (T 57)
Parent testified as to specific needs for the service. Student requires limited travel time due to: “… and he doesn't have a the years that it's--and I believe just from common sense that it's not good for him to be sitting in the same position for hours at a time.” (T 58)
Student IEP does indicate special education which
. (Ex B 23)
I find the student is entitled to limited time services.
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, participated in requested evaluation and communicated her concerns to the DOE.
enrolled her child at . (T 49)
Student’s parents and signed tuition contract. (T 37-38 & 50, Ex I)
Tuition for the , 2015-2016, is . (T 38, Ex I)
Payments have been received, via checks. (T 38-39 & 52, Ex J) Payment includes services of . (T 40)
Student is a school employee. (T 40)
Parent paid directly for the summer, but for the school year the will be paid by . (T 40)
Parent does not have the means to pay the student’s tuition. (T 52)
Parent identified (T 53, Ex L) and contends her financial status has not changed since 2014. (T 54) “…I have no reason to believe that for 2015 for the rest of this year that there will be any changes in terms of finances.” (T 55)
Parent has provided copies of checks totaling about (Ex J)
Parent seeks direct funding, or prospective payment, of tuition for the DOE.
Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-
106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of pages of , indicating income of about (Ex L
1) No evidence is provided as to any 2015 income except that the financial status has not changed. (T 54)
No testimony or evidence is presented regarding the availability of resources which may be used for tuition payment. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2015-2016 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004.
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 2015-2016 school year.
2. The parent shall be reimbursed for any tuition payment made to for 2015-2016 school year, including the summer program.
3. The DOE shall reimburse parent for any tuition payment related to this Order within 15 days of receipt of any proof of payment by parent up to the amount of
.
4. DOE shall provide of the student
to and from the for the 2015-2016 school year. shall include a
.
5. Total amount of tuition to be reimbursed or directly funded is
.
6. DOE shall reimburse parent for cost of summer in the amount
7. DOE shall provide parent and with any required documentation and forms necessary to facilitate payment and/or reimbursement within ten days of the date of this order.
8. DOE shall provide ( s) as follows:
a. ( ) of sessions;
b. ( ) of sessions;
c. ( ) of
;
d. of sessions;
e. education services for sessions.
9. This decision is subject to appeal and review by the State Review Officer. Dated: September 21, 2015
DANIEL AJELLO, 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-da y 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 08/21/2015
A Children's Services Program Description 2015-2016, 3 pages
B IEP, 4/29/15, 26 pages
C 2015 Summer Schedule 1 page
D 2015-2016 School Schedule, 1 page
E Affidavit 8/15/15, 2 pages
F Affidavit 8/15/15, 2 pages
G License License Information for , 1 page
H Children's Services Attendance Record for Summer 2015
I Children's Services Enrollment Agreement Full-Time Student for 2015-2016
school year 3 pages
J Proof of Payment, 3 pages
K CBST Correspondence 7/14/15, 1 page
L , 2 pages
M Parent's Hearing Request 7/7/15, 4 pages
DEPARTMENT OF EDUCATION
NONE
IMPARTIAL HEARING OFFICER
ENTERED 08/21/2015
I Notice of Appointment 7/14/15, 4 pages