Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK NEW YORK STATE EDUCATION DEPARTMENT ween eee een eenenneennnnennnennnnnnnnnnnnnnnes x @® and WB o/b/o BB, Petitioner, Vv. ES Usp, Hearing Officer: Roslyn Roth Respondent. THO Case No. Qa sus aieeasalseaansin sienna atonement x FINDINGS OF FACT AND DECISION

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals with Disabilities Act (“IDEA”). In accordance with the Parents’ demand for due process dated September 8, 2014 and amended on October 17, 2014, I was appointed to hear this matter. Timely extensions of the compliance dates were given. The hearing took place on the following dates: April 29, 2015, June 2, 24 and 26, 2015. Post hearing memorandum were submitted by the parties on July 24, 2015 and have been entered into the record as Hearing Officer’s Exhibits I and II. Both parties were represented by counsel. The Parent’s due process complaint alleges that the District failed to provide the student with a free and appropriate public education. (“FAPE”). The Parent submitted 17 exhibits “A, B, D-K, O-U” and called 3 witnesses in support of her position. The following witnesses testified on behalf of the parent: the parent, qa . The District submitted 11 exhibits “1-5, 8-13” and called 4 witnesses to testify in support of its position: waititep (List of Exhibits annexed hereto as “Attachment A”). The Parent asserts that the student was referred to the District in February 2014, but that the District failed to timely evaluate and recommend an appropriate program for the student. The |

. (E2x 1110 I) The District . (Ex IHO I) STATEMENT OF FACTS The student is classified 2: iii. The student, who GLI en a, QUEER (TR 276) The Parent’s on Cee ae, r {BRE ee eee" 637) When the Parent first became aware of the student’s eee

Me h (TR 636, 639, 655, 456) Although the Student's family moved to a residence within the District prior to October 2012. the student was first registered and referred to the District for special education services in Rebruary 2014. (TR 639-640, 655, Ex 5). Me The administrator in charge of the District’s program for students with ‘Gite, ——. (TR 659) In March 2014, the District attempted to 0) TT a TT aa in not release any information to the District and | EL DTA aa, that the student be evaluated. ciR 198, 199, Exs. o.oo 12, 13). , According to the IEP, when the Committee on Special Education (“CSE”) met on August > Ny Ss On > . i

Se eae Si Sr Se ee, a (Ex 3)

CONCLUSIONS OF LAW

In order to establish that the Parent is entitled to tuition reimbursement for the unilateral placement of the student in a private school, there must be a finding that the District failed to provide the student with a free and appropriate public education, “FAPE”, that the parent’s chosen program is appropriate, and that equitable considerations support the granting of tuition reimbursement. School Committee of Town of Burlington, Mass. v. Department of Educ. 471 U.S. 359,( 1985) ; Carter v. Florence 510 U.S. 7, (1993) 1b) Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a)(7) or (9) of this section, after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education. The initial individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student's parents and the CSE pursuant to subparagraph (7)(i) and paragraph (j)(1) of this subdivision. The individual evaluation shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student's individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least: (i) a physical examination in accordance with the provisions of sections 903, 904 and 905 of the Education Law; (ii) an individual psychological evaluation, except when a school psychologist determines after an assessment of a school-age student, pursuant to paragraph (2) of this subdivision, that further evaluation is unnecessary; (iii) a social history; (iv) an observation of the student in the student's learning environment (including the regular classroom setting) or, in the case of a student of less than school-age or out of school, an environment appropriate for a student of that age, to document the student's academic performance and behavior in the areas of difficulty; and (v) other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.

Furthermore, a parental placement may be found to be appropriate even if it does not meet the State standards that would otherwise apply to education provided by the District. 34 CFR 300.148 (c) Accordingly, in determining whether a Parent’s chosen program is appropriate, the Parent’s selected private school does not have to be a state approved school for the education of students with disabilities, the teachers do not have to be certified, and the program does not have to provide the student a setting in the least restrictive environment. The determination of whether the parent’s selection is appropriate is determined by whether the program provides specialized education or services that meet the student’s unique needs. Carter v. Florence 510 U.S. 7, (1993) The Parent’s claim that the student was not offered an appropriate placement in a timely fashion is unrefuted and thus, the first element in the three prong analysis of whether the Parent would be entitled to tuition reimbursement for the unilateral placement has been satisfied. Because the District had failed to offer FAPE to the student, the first element in the analysis of whether the Parent would be entitled to the remedy she seeks is satisfied. The second prong in the analysis of whether the Parent is entitled to tuition reimbursement for the unilateral placement is whether the parent’s chosen school is appropriate to meet the student's needs and abilities. ‘i? Lk | A aT ie aa ee epi) eae:

The Parent's testimony i (an Ey ee Thirdly, in accordance with IDEA, 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" (20 U.S.C. § 1412[a][10][C][iii][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" Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004] Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; MC. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]); see Carter, 510 US. 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” (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 [Ist Cir. 1984], aff'd, 471 U.S. 359 [1985}).

With respect to equitable considerations, a Parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04- 102; Application of the Bd. of Educ., Appeal No. 04-026; Application of a Child with a Disability, Appeal No. 99-80). As stated by the Court of Appeals, “[wJhere a school district fails to provide a FAPE and the private placement is found to be appropriate, ‘the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.’ ” Gagliardo y. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir.2007). Important to the determination of whether equitable considerations support the awarding of tuition reimbursement, is whether the Parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA. With respect to equitable considerations, the IDEA allows 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, or upon a finding of unreasonableness with respect to the actions taken by the Parents (20 U.S.C. § 1412[a][10][C][iii}). With respect to a Parent's obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, Parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][10][C]fiii][I1] (emphasis added), 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e][4]). Under 20 U.S.C. § 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary (Application of a Child 8 with a Disability, Appeal No. 04-071; Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054) (see 20 U.S.C. § 1412[aJ[10][C][iv][IV)). The |(Ex I) Notwithstanding her: | Order: 1. The District shall reimburse the Parent for a portion of the student’s tuition for the 2014-2015 school year in the amount of egg? | WR. (npartial Hearing Officer Submitted: August 26, 2015 o

ATTACHMENT A DOCUMENTATION ENTERED INTO THE RECORD ON BEHALF OF THE IMPARTIAL HEARING OFFICER 17/24/15 Parent’s Memorandum of Law 117/24/15 District’s Memorandum of Law 23 pages 13 pages DOCUMENTATION ENTERED INTO THE RECORD ON BEHALF OF THE SCHOOL DISTRICT 1 October 13, 2014 Answer 2 September 8, 2014 PWN 3 August 4, 2014 JEP 4 July 24, 2104 fennieae::. 5 February 4, 2014 Sear 8 various Contact Log 9 May 28, 2104 SL 10 3 pages 2 pages 10 pages 4 pages 3 pages 1 page 2 pages

10 May 27, 2015 11 May 30, 2014 12 June 16, 2014 13 June 24, 2014 Sealine SL a Letter from Kier Letter from Mii Email 3 pages 1 page 1 page 1 page DOCUMENTATION ENTERED INTO THE RECORD ON BEHALF OF THE PARENT A September 8, 2014 B October 17, 2014 D Undated E 2014-2015 F March 27, 2015 G November 24, 2014 H 2014-2015 11 Demand for Due Process Amended Demand for Due Process Program Description Th Daily Schedule (Updated 4/13/15) Progress Report for November 3-February 28 Progress Report for July 7-October 31 Draft Goals 2014-2015 03 Pages 07 Pages 02 Pages 01 Page 21 Pages 18 Pages 06 Pages

12 2014-2015 Tuition Contract ae Vw = CBP BM 8 e Mk ee April 21, 2015 Attendance ee, October 24, 2014 Letter from Parent tii, (with fax confirmation) September 23,2014 Letter from Parent tp im, (with fax confirmation) August 19, 2014 Letter from Parent to aap (with fax activity report) October 10,2014 AAA, By: ee ee ae, june 16,2015 ee eee 04 Pages 01 Page 01 Page 02 Pages 03 Pages 03 Pages 05 Pages 09 Pages

T June 9, 2015 Attendance 01 Page Thea U- 2014-2015 Parent’ 5a, 05 Pages 13