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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By:
Date of Hearing: July 21, 2015
August 13, 2015
September 3, 2015
October 9, 2015
Actual Record Closed Date: October 30, 2015
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 21, 2015
Parent Attorney — Student
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2015
Attorney — Student
Attorney — Student
CSE, District Representative — DOE
Former DOE Employee (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 3, 2015
Attorney — Student
Attorney — Student
Mother — Student
Educational Director (Via Telephone) — Student
(Via Telephone) — Student
, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 9, 2015
Mother — Student
(Via Telephone) — Student
(Via Telephone) — Student
Attorney — Student
Attorney — Student
Chair designee — DOE
INTRODUCTION
On 07/07/2015, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
On 07/21/2015, a pendency hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.
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.
On 09/03/2015 parties made a motion to extend the compliance date by 30 days to allow time to continue with additional witnesses for the case. Motion was granted and compliance date was extended to 10/14/2015. (T 254-255)
On 10/09/2015 parties made a motion to extend the compliance date by 30 days to allow time to Receive and review the day’s transcript and submit closing briefs. Motion was granted and compliance date was extended to 11/13/2015. (T 359, IHO Ex IV)
This matter was instituted by the impartial hearing request dated 07/01/2015 alleging that the Department of Education (DOE) failed to offer a Free and Appropriate Public Education (FAPE), for the student, for the 2015-2016 school year. (Ex A 1)
Relief sought includes funding or reimbursement for unilateral placement at the ( ) funding of program, and any other appropriate relief. (Ex A 9-10)
BACKGROUND
Most recent IEP, of 01/23/2015, includes: was about years o f age, classification of , needs support of a for and , requires and for and , and (Ex 1-1); with support. (Ex 1-2); level, has made some minimal progress, ,
, and ,
, performs many , follows a
, improved in his ability to , has improved significantly, demonstrates progress in (Ex 4-1);good progress in , and or , , needs include
, , , ,
( ), and ,
( ), ( ), ( ),
( ), needed, (Ex 1-
5); and goals (Ex 1-6 to 1-9); goals (E 1-09 to 1-12); goals (Ex 1-12 & 1-14); goals for (Ex 1-15); recommended services include a , , ( ) services for minute sessions weekly, in a weekly for a minute session, ( )
for minute sessions weekly, ( ) for minute sessions weekly, in a , time weekly for a minute session, in a for an each week in the (Ex 1-15 & 1-16); a program (Ex 1-16); (Ex 1-17); (Ex 1-18); levels of for and (Ex 1-19).
THE PARENT’S POSITION
( ) and ( ) presented the parent’s position.
Parent contends that student needs were not properly evaluated by the DOE (T 126), failed to offer a FAPE, and services sought by parent are appropriate to address the DOE failure. (T 127-132)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as educational director of , certified in special education K through 12. (T 135-138 & 190)
Duties include
and making sure progress is occurring. (T 138-139)
oversaw the student’s intake and assessment, is involved in parent training and supports the family at with services. (T 140)
detailed the school characteristics. This included that is a school dedicated to the education of children with utilizing every possible tool to further their development (T 140); provides a program (T 143-144); school follows a school year (T 144); school utilizes ,a
-based approach that guides the teaching of and (T 143-144); data is recorded daily on and being taught, and based on that data, program modifications are made, as needed (T 144); a and school (T 160); students at (T 275); all students have a formal diagnosis of ; difficulties with , ,
, , and ; and require an
(T 142); related services of ,
, and are provided (T 145); there are for every student (T 150-151); opportunities are provided where appropriate with the support of (T 151); staff receive ongoing professional development (T 151-152); teachers collaborate constantly in order to effectively address their student’s needs in , ,
, , , and and multiple assessments are used to help guide and create the student’s program for the 2015-2016 school year (T 153-154); program also utilizes . For and for . (T 147)
Student‘s program was developed at the beginning of the school year by a team including all of his teachers and providers. (T 145-146)
Student’s team created an individualized program, including goals for the 2015- 2016 school year. (T 145-146)
Student uses a and a (T 148 & 187),
, he
, a lot of is needed, incorporates parts of
(T 187), are addressed, and are used (T 188), is addressed by
. (T 188)
Student weaknesses include: “the areas of , , ,
, , … …in , he's--I mean in all these areas he makes progress, but the deficits are still there, so he demonstrates weaknesses in all those areas, .” (T 153)
Student struggles in (T 154) and are weak (T 154).
Student
. (T 155)
Student has . (T 156)
Student has improved with but still has difficulty with .
(T 157-158)
Student has difficulty with . is weak and
“
” (T 158-159) Student participates in some
. (T 199)
Student needs support and . (T 159)
Student has “ which is his most
Also things like It impacts his
I know some other
” (T 160)
Witness reviewed the qualifications of teacher working with the student. (T 161-163)
Staff , . The staff
are: “teaching it in , making sure it's
within the school day. And between different teachers, they're making sure the skills are . They're using , . Sorry, excuse me. , where becomes part of the ,
, . They're using from
.
.
They're working not just on the . They're working on within
, , , , , , which include the , so they're working across every area of his needs.” (T 162-163)
Student progress is noted , with such as , , and . (T 164-165)
Student are , , within and
. (T 167)
Student requires , including ,
, and . (T 168) This is needed for as he is not from he needs to be
. (T 168-172)
based service needs we discussed at the last IEP meeting. Response was that it cannot happen as all goals could be accomplished in the recommended setting. (T 173)
Student currently receives the and has been receiving them for
. (T 174)
There was a break in these services, June of 2013 resuming in November of
2014. (T 174)
The break in service resulted in slower progress. (T 177)
Currently student receives hours weekly of . hours of
(T 174-175)
With services the student’s has increased, student is better able to and , and have improved.
Improvements are noted at and . (T 175)
Student requires services to and to address
the student needs to . Witness believes the student requires hours of service at . (T 177-178)
Increased hours would allow to be addressed such as , and that require . (T 178-179)
Hourly rate for is $ . (T 179 & 186)
Services should include and . (T 180)
participated in the IEP meeting of 01/23/2015. Progress was reviewed, goals presented were for the current school year and new goals should be requested at the end of the school year, were discussed, needs throughout the day were discussed, and there was disagreement with the DOE recommendations.
(T 181-183, Ex 1)
Student was only able to with . (T 183)
provided a to the DOE. (T 185)
Witness was asked about the differences in and . “…I do , so I do . I do take whatever's appropriate for and I do take those , and the other teachers are working on those as well. With that in mind, he is also working on the that are necessary only for as well because those can't be
” (T 205)
Some cannot be , such as , and
. (T 205-206)
Witness believes is vital to the student who is and other when he has . (T 217) Student requires
. (T 218)
Parent, with support, is able to address of the student. (T 219)
Student shows regression even over a weekend. (T 218)
Part of the services include . (T 219)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as the . (T 225, 228-230)
works with the student on , and
. “We did a lot of We did and
” (T 232)
Student has difficulties with . works on
“
” (T 233)
Goals were determined through screening and assessment of the student as well as a review of student reports. (T 234)
Student has improved in . (T 235)
Student requires as he: “…
.” (T 236-237)
Student has shown improvement with . Student still has involving . (T 237-239)
Student needs are the same as the last year, though there has been some improvement. (T 240-241)
Student shows regression without her services. (T 241-242)
sessions are provided weekly at a rate of $ for each minute session. (T 242)
Witness goals are related to the . (T 244)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as a instructor. (T 261-263 & 273-284)
confirms the student has a lot of and . (T 264)
Student needs include: , is
, he has ,
, has a hard time
(T
264); he has deficits in his , including
(T 265); is also an area of deficit (T 265); and student has . (T 266)
Student requires to learn. “
, , and then
, , and . (Student) does
not , and this is another key deficit for him.” (T 268)
Witness reviewed the approach relative to the student who needs
. (T 268-270)
us utilized throughout the school day. (T 272)
Student receives periods of and periods of each week. (T 272)
Student has a in school. “Most of the activities are minutes long, and they're about every . As prescribed by the these activities help him and and
” (T 272-273)
Student uses the school’s . (T 273)
Student’s class has students. All the students are and have similar and needs. (T 273-274)
Student needs a to and .
(T 274)
Witness has seen some progress with , , ,
. Student still requires a
. (T 276-277)
Student requires a based program to . “
” (T 277-278)
Witness can provide hours weekly of service at a rate of $ per hour. (T 278-279)
Witness has seen the student in the to observe, but has not yet provided services in the . (T 290-291)
Student requires a program. (T 279)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as the student’s , employed by . (T 299-300)
Student has and delays. provides
to the student in the , weekly. (T 300-301)
To assess student needs the IEP and school reports were utilized. (T 301)
“
“ (T 301)
are important for the student to from to a more . (T 303-304)
are utilized in some and student is
. (T 304)
Current goals include , and .
(T 306)
Progress is monitored each session. (T 307)
Student has made progress in all aspects of throughout the past year. (T 309 & 316-317) Progress is attributable to and services. (T 309) Student still needs to work on .
Rate charged is $ for a minute session. (T 310)
is sees the student a week to for minute session with the student, instead of the mandated minute sessions weekly. (T 310-311)
PARENT WITNESS
( ), the student’s mother, testified at hearing of 10/09/2015.
After summer vacation there was a little bit of regression: “
” (T 319)
Student is making progress . (T 320)
Student has involving and . (T 320)
Student has . (T 321)
set forth some in detail: “
…” (T 322)
visit’s the school and sometimes the student is able to do things at he cannot do at . (T 323-324)
recalls the DOE recommendation at the 01/23/2015 IEP meeting and her seeking to keep the program. (T 325)
Parent identified letter of 06/12/2015 as accurate. (T 326, Ex C)
Parent identified Evaluation obtained. (T 326, Ex I)
Parent agrees with evaluation recommendation that her child receives hours of weekly so that the child can make progress at and at . (T 327)
Parent identified Enrollment Contract, and her signature thereon. (T 328, Ex D) Contract was signed 07/01/2015. (T 348)
Parent believes she is obligated to pay the tuition. (T 328)
DOE provides to . (T 329)
Parent was asked about the child’s .
“He's a child with , first of all. He is receiving . Once the teacher was two years ago, they really help us make nice progress. Then at some point we lost the case, and (Student) really, really regressed.” (T 330)
provided an example of the regression she had seen in the student: “For example,
” (T 331)
Student currently receives hours of each week in the . At time participates in sessions as well as the siblings. (T 332)
Sessions work with on what to do when she is alone with her child. (T 334)
identified affidavit of 11/06/2012 as accurate. (T 335, Ex L)
believes her child continues to need the requested services, and may even need more. (T 335)
sessions are working on issues and this has made the student
. (T 336)
still has difficulty her child and believes services need to continue. (T 337-338) Sometimes the student will now
(T 339)
Parent does not ask about the altered services from the recommended times weekly to times weekly. (T 346) continued that she was told the sessions weekly were . (T 346-347)
believes services should be delivered through and . (T 339-340)
reviewed the student’s schedule. (T 341-346)
Student has been at for years. (T 347)
Student participated in an program last school year and will again for the current school year. (T 353-354) program was a program for the 2015-2106 school year. “
” (T 354)
was for days a week for hours each day. (T 355)
Student received some and was with the teacher throughout the day. (T 356)
DEPARTMENT OF EDUCATION POSITION
( ) District Representative, presented the DOE position on
08/13/2015.
On 08/13/2015 requested an adjournment based upon the matter being approved for settlement. (T 35)
Adjournment was denied, in part due to a lack of information regarding likelihood of success of any settlement negotiations. (T 35-36) Settlement negotiations appeared to have just commenced between the parties. (T 37-41)
DOE contends a FAPE was offered to the student as included in the IEP of
01/23/2015. (T 52-56, Ex 1)
( ) represented the DOE at hearing of 09/03/2015.
DOE WITNESS
( ) reviewed her educational and professional background and testified as a DOE special education teacher, presently retired. (T 57-58)
was present at the IEP meeting of 01/23/2015. (T 59)
At the time of the meeting student was in grade in and . (T 61)
IEP information came from the school with no disagreement from the parent.
(T 62-64)
Team had some previous assessments and reports. (T 90)
A recommendation was made for setting, with
, , , , and . (T 64-65, Ex 1-15 & 1-16)
Witness identified some IEP goals. provided
goals. (T 66-73, Ex 16 to 1-13)
Goals were developed at the IEP meeting (T 73) with . (T 76-77)
goals are not developed at the conference. The team did not identify the parent’s needs. Someone at the school site will figure this out when the parent gets there. (T 76)
There was no discussion regarding for the student.
(T 79) This includes a . (T 80)
Student is entering grade and as the student
will be . (T 82, Ex 1-19)
Parents brought up instruction, and wanted the student to remain at . (T 83-84)
Parent and school felt the student needed . “the team felt that in a , is implemented, as well as , and that (student) would benefit being in a setting.“ (T 85)
Team did not feel the student needed .
(T 85)
Parent and school indicated the student needed
. (T 96)
Team did not feel the student needed any . (T 85)
There was discussion regarding . (T 86)
“The team actually felt that services should not be implemented , because it is up to the school, teacher, , as well as the parents to
, and has
” (T 87)
IEP team created a ( ) and a
( ). (T 99) Both were prepared and discussed at the meeting.
(T 100)
The school can address some of the students needs. (T 101)
needs of the IEP are the responsibility of the teacher and
. (T 107)
Part of student’s responsibility is, each day: to enable the student “to have an education by
” (T 108)
“…it is the classroom teacher's role to speak to the daily--of course, more than one time a day--to instruct the on what needs (student)
needs to be worked on in” (T 109)
The student always needs . (T 110)
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 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 (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 "'academic, developmental, and functional needs'" 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; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, 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 hearing, 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 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.
(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 related services 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
DOE witness, who was present at the IEP meeting of 01/23/2015, testified in support of the DOE position. (T 59)
IEP failures could not be remediate via the testimony provided as detailed herein.
IEP includes a variety of issues related to student , which include:
has gotten worse, is not working well, (Ex 4-1); needs, , needs
include , ,
( ) (Ex 1-5). Parent witnesses further detailed student issues. (T 155 & 322)
State regulations call for the procedure of using an FBA when developing a BIP, and the Second Circuit has explained that when required "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all (R.E., 694 F.3d at 190). However, the failure to comply with this procedure does not automatically render a BIP deficient
(M.W., 2013 WL 3868594, at *5; R.E., 694 F.3d at 190; A.D., 2013 WL 1155570, at *9;
A.H., 2010 WL 3242234, at *4; see F.B., 2013 WL 592664, at *8-*1; R.C. v. Byram
Hills Sch. Dist., 906 F. Supp. 2d 256, 269, [S.D.N.Y. 2012]; F.L., 2012 WL 4891748, at *8; K.L., 2012 WL 4017822, at *11; T.M. v. Cornwall Cent. Sch. Dist., 900 F.Supp.2d
344, 354 [S.D.N.Y. 2012]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *8-*9 [S.D.N.Y. Dec. 8, 2011]; P.K. v. New York City Dep't of Educ., (Region 4), 819
F. Supp. 2d 90, 106 [E.D.N.Y. 2011], aff'd, 2013 WL 2158587 [2d Cir. May 21, 2013];
C.F., 2011 WL 5130101, at *9).
With regard to a BIP, the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [BIP] for a student with a disability when: (i) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student's behavior; and/or (iv) as required pursuant to" 8 NYCRR 201.3 (8 NYCRR 200.22[b][1]). Once again, "[i]f a particular device or service, including an intervention, accommodation or other program modification is needed to address the student's behavior that impedes his or her learning or that of others, the IEP shall so indicate" (8 NYCRR 200.22[b][2]). If the CSE determines that a BIP is necessary for a student, "the [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]).17 Neither the IDEA nor its implementing regulations require that the elements of a student's BIP be set forth in the student's IEP ("Student Needs Related to Special Factors," Office of Special Educ. [April 2011], available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf).
However, once a student's BIP is developed and implemented, "such plan shall be reviewed at least annually by the CSE or CPSE" (8 NYCRR 200.22[b][2]). Furthermore, "[t]he implementation of a student's [BIP] shall include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the [BIP] and on the student's IEP. The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's [BIP] or IEP" (8 NYCRR
200.22[b][5]).
In the instant case a need for an and was identified and acknowledged by the DOE. Witness states that the IEP team created a ( ) and a ( ) (T 99) and that both were prepared and discussed at the meeting. (T 100) DOE has presented no evidence of an actual or for the student. Again the IEP is deficient in this area of student need.
IEP also calls for and (Ex 1-5) and in a for each week in the (Ex 1-19). No goals are presented as to .
IEP is deficient in that goals are not developed at the conference. Witness testified that the team did not identify the parent’s needs as someone at the school site will figure this out when the parent gets there. (T 76)
IEP is deficient is failing to identify needs despite noting the need for . (Ex 1-18)
Though parent and school felt the student needed , “the team felt that in a , is implemented, as well as , and that (student)
would benefit being in a setting.“ (T 85)
No information was provided regarding .
Witness did state that the team did not feel the student needed some degree of . (T 85) However, the IEP itself calls attention to needs of the student. IEP, of 01/23/2015, includes: needs support of for and (Ex 1-1); participate in with support. (Ex 1-2); needs include
, , (Ex 1-
19). IEP fails to provide for the needs of the student. A need of a is listed in the IEP, however, the provided is a with goals solely related to (Ex 1-15).
DOE witness states that needs of the IEP are the responsibility of the teacher and . (T 107) No evidence is provided as to how the teacher or the would address the needs of the student, such as need for .
Part of student’s responsibility is, each day: to enable the student “to have an education by
” (T 108) No evidence was provided as the how this would apply to the student specifically nor how the would be charged with additional services outside of the goals of the IEP.
DOE witness did state that the student always needs . (T 110) IEP does not address this stated need of the student.
IEP contains several areas of contradiction that affect the appropriateness of the document. IEP includes that the student performs (Ex 4-1) and good progress in (Ex 1-5). Yet it also includes that the student has needs and ,
, ( ),
, needed, (Ex 1-5).
Testimony from staff and parent consistently detail student weaknesses in and .
Student is also acknowledged to have . (Ex 1-5 & 1-15) However, the IEP provides no details as to what the student is actually .
and regarding that failed to be detailed in the IEP.
(T 160)
For the reasons set for the above I find the IEP of 01/23/2105 was not appropriate for the student and did not offer a FAPE.
I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.
The IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.
PLACEMENT
Witnesses and documents detailed an understanding of the student’s needs and the appropriateness of the program for the student for the 2015-2016 school year. (Ex P)
is a school for the education of children with . (T 140, Ex E) A program is provided to the students. (T 643-644) The school follows a school year. (T 144 & Ex E)
. (Ex E)
is utilized in the school program. (T 143-144, 162, 268-269, & Ex E)
Parent witnesses consistently testified that the student was only able to learn with . (T 183 & 268)
Appropriately for the student is totally a and school.
(T 160 & 276)
All students at have a formal diagnosis of
; have difficulties with , , ,
, and ; and require an setting. (T 275 &
142, Ex E) Student receives periods of and periods of each week.
(T 272)
Related services of , , and are provided. (T 145, Ex E & F) Student receives these services at . (T 145)
Student program, with goals, was developed at the beginning of the school year by a team including all of his teachers and providers. (T 145-146)
Student class contains students, which helps to . (T 274)
Peers are on a similar , with similar and needs as well. (T 273-274)
Student weaknesses include , , and ,
, and , (T 153);
(T 153-154);
(T 155); (T 156);
(T 233); (T 321)
Student strengths include and , but is still very difficult for him. (T 154) Deficits are addressed through
. (T 136 & 261-82)
and issues are detailed (T 155-156) and addressed with opportunities to
. (T 167)
is still an area of weakness for the student. (T 158) To address this , including and the . (T 159)
is only administered for and at to , to work on , and to
. (T 198-199)
is familiar with specific student . This includes to , , , , and an .
(T 160)
is the bases for all student instruction. (T 143-144 & Ex E)
Student work is . (T 144 & 268-269)
Student goals are , , and
. (T 268)
Data is collected and analyzed so that teacher and providers can monitor student progress, and modify his program as needed. (T 163)
Specialized student curricula, for his , includes , and . (T 146)
Educational needs of the student are met by providing the student with:
(T 146-148) as well as and
(T 148 & 187), , he
, a lot of is needed, incorporates parts of (T 187), are addressed, and are used (T 188), is addressed by
(T 188), , and , in part, with sessions (T 232-233); a for (T 785); and a (T 2272-273).
Progress is noted with , and (T 235 & 162-165),
(T 237-239), and (T 309 & 316-317) &
(T 320).
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 offered 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 Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 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 transportation, 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 transportation 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]).
Parent seeks
. (T 329)
IEP identifies a need for , though it fails to provide specifics. (Ex 1-18)
I find the student is entitled to
.
SERVICE PROGRAM
To the extent that the parties dispute that the student required services in order to receive a FAPE, several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in , particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-
53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir.
2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]; see also Application of the Dep't. of Educ., Appeal No. 11-
031).
However, a FAPE must include any developmental and supportive services as may be required to assist a child with a disability to benefit from special education, including . 20 U.S.C. §1401[26], [29]; 34 C.F.R.
§300.39(a). Under §§1412 and 1415 of the IDEA, a FAPE is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C.
§§1412[a][1], 1415[i][2][C][iii]; Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2492
(S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Letter to Kohn, 17 IDELR 533 (OSEP 1991). Although the IDEA does not address the specific remedies an impartial hearing officer may order when there has been a denial of FAPE, a hearing officer has the authority to grant any relief that he or she deems necessary to ensure that a child receives the FAPE to which he or she is entitled. Letter to Kohn, 17 IDELR 533
(OSEP 1991); see SRO Appeal No. 05-113, 06-001, 06-003.
Witnesses detail their belief for centered around the student’s ability to and for . (T 177-178)
staff are: “teaching it in , making sure it's within the school day. And between different teachers, they're making sure the skills are . They're using ,
… , where ,
, …They're working not just on the academics. They're working on skills within , , , , ,
, which include the , so they're working across every area of his needs.” (T 162-163)
Program Description includes:
“Carefully designed programming, targets each child’s goals within a broad range. These goals are established based on the learners inventories, s\designated
IEP goals, parent wishes and consideration of community needs. The breakdown of student target goals includes everything from to . Every
, , , and goal is included. Within these considerations are , ,
, , , ,
, , , …” (Ex E 1)
“ and goals
Student objectives may include
” (Ex E 2)
The detailed Program Description encompasses many, if not all, of the areas of concern the witness set forth in testimony regarding the need for services.
Witness testimony includes that the Student requires , including , , and . (T 168) This is needed for as he is not he needs to be . (T 168-172)
Student currently receives the and has been receiving them for
. (T 174)
testified that, with his current hours per week of , there is not enough time to teach that need to be taught in the . (T 178) contends more time is needed to
. (T 179)
However, testimony indicates that , , and are being taught at . (T 162-163)
Witness does states: “…I've noticed a very big improvement when
” (T 236-137)
Evidence indicates that while the student may progress more quickly with the progress can be expected to take place without them. (T 162-163)
Witness was asked about the differences in and skills. “…
” (T 205)
It is not clear why the DOE would be obligated to teach, as part of a FAPE, skills necessary only for learning , which can’t be taught . These skills seems better addressed via the part of the services created for the student.
Witness does have concerns for the student by setting forth a belief that is vital to the student who . (T 217) Student requires . (T 218)
Again, this seems an area better suited to than
.
Progress is noted in all aspects of throughout the past year. (T 309 & 316-317) Progress is attributable to and services. (T 309) service, , do contribute to the progress seen in the
.
Parent testimony points to the need for specific . still has difficulty her child and believes services need to continue. (T
337-338) Parent also has difficulty . “
” (T 322)
This is another area of concern that indicates needs to be explored and supported for the parent.
In the setting, providers work with the Student, when , on , as well as
.
(T 178) addresses Student’s , including .
However, when he .
Parent contends this is due to the
. (T 278) This appears to be another area where is lacking.
While the student may indeed benefit from the Program each area of student weakness is addressed in some way by the .
The IDEA 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, 873
F.2d at 567 [citations omitted]).
The evidence described above shows that the program satisfied the more modest requirement of providing a FAPE and a program likely to produce "progress, not regression" (Walczak, 142 F.3d at 130 [2d Cir. 1998]), and I find that the inclusion of services are not required for the Student to receive a FAPE.
SERVICES
Parent contends the Student, in addition to instruction, requires continuation of his services. The student has significant difficulties with and as well as . (T 300)
Parent contends that the student is and
, even though he may be able to do this more successfully . (T 170-171)
, assessed his needs and developed a plan for the 2015-2016 school year. (T 301)
program, in part, is targeting
and , ,
,
, and . (T 306)
, and . (T 304-305) points to student
progress in he area of (T 308) though he still needs and . (T 317)
states that Student progress was due to a combination of his program and program, and testified that the program is essential to his progress. (T 309)
Evidence is not provided to indicate that the student would not make progress without the service.
Parent seeks Student to continue, services in the amount of -minute sessions ( ) per week. (Ex Y) Parent contends the Student’s skills are and there are certain skills, such as and , that . (T 172)
In school, the Student, receives a , and the availability of a , in order to help , and his are addressed during the school day in numerous ways. (T 172, 273, 187-189 & Ex O) At parent contends the Student requires a to teach him and that he can perform at to . (T 172)
Witness testimony includes that the student did indeed make progress when the were previously discontinued. There was a break in these services, June of 2013 resuming in November of 2014. (T 174) The break in service resulted in slower progress. (T 177)
Testimony indicates that the services requested for the relate primarily to the student‘s . Situation at appears to be especially difficult, at least in part, due to . (T 346) Student issues at that relate to include: “
” (T 322)
The are in some part evidenced to be provided to assist the entire family as opposed to providing a FAPE for the Student. This is evidenced by providing services to the student a week to accommodate the family’s schedule for a minute session with the student, instead of the mandated minute sessions weekly. (T 310-311)
Parent does not ask about the altered services from the recommended times weekly to times weekly. (T 346)
Student indicates that the parent may indeed need assistance in caring for the Student in the . Evidence does not support that services are warranted. Student needed , and behavior and functioning of the student in his or her home is not itself a sufficient basis to require that services, and/or under the IDEA (see K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *14 [S.D.N.Y. Aug. 23, 2012] [upholding the administrative determination that services that were desired to skills and improve the student's custodial care in the were not required], aff'd 2013 WL 3814669 [2d Cir. July 24, 2013]; A.D. v. New York City Dep't of Educ., 2008 WL 8993558, at *7 [S.D.N.Y. April 21, 2008]; Application of the Dep't of Educ., Appeal No. 12-086; Application of a Student with a Disability, Appeal No. 12-052;
Application of a Student with a Disability, Appeal No. 11-068; Application of the Dep't of Educ., Appeal No. 10-123).
The SRO has in the past, in similar circumstances encouraged “…the parties to work cooperatively to assist the parent to utilize the resources through the district's CSE and/or with the help of a social worker or a case manager to identify available respite,
, or other services and funding which may be available through the New York State Office of People with Developmental Disabilities or local municipal agencies that could provide support services with trained providers for the child when he is not receiving educational services (see, e.g., Application of the Bd. of Educ., Appeal No. 08-074; Application of a Child with a Disability, Appeal No. 07-050).” (SRO 2012-1999)
In light of the aforementioned discussion specific to out-of-school services, I find that the services provided at sufficiently address the student's educational needs during the normal school day. The hearing record does not demonstrate the district was obligated to provide out-of-school services for the student.
I do note that while the parent is entitled to sessions, specific details are not provided as to the delivery of this service. New York State regulations provide that programs developed by the CSE for students classified with must include to enable parents to
. 8 N.Y.C.R.R.
§200.13[ ]. The DOE has already been found not to have provided a FAPE. This finding is made, in part, due to the lacking . Providing proper appears to be warranted under the current circumstances.
SERVICES
Witnesses testified that the student needs over the period, including , , and , because he has demonstrated regression when there is a break in his services. (T 180, 279 & 319)
Testimony included that the Student shows regression (T 218) and shows regression without her services. (T 241-242)
Testimony included that a break in service resulted in slower progress. When there was a break in these services, June of 2013 resuming in November of 2014 (T 174) this resulted in slower progress. (T 177)
Testimony also included that after there was a little bit of regression: “but this is sometimes happen after weeks of break.” (T 319)
Evidence does not support services beyond the usual program for the student.
This relief is denied.
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.
Parent attended the 01/23/2015 IEP meeting and expressed her disagreement with the DOE recommendation, seeking to keep the program. (T 325)
Parent documents detail parent position regarding her child, including her intent to enroll the student at if an appropriate placement offering is not made.
(T 326 & 335, Ex C & L)
Parent identified Enrollment Contract, signed 07/01/2015 (T 328 & 348, Ex D) and believes she is obligated to pay the tuition. (T 328)
Tuition is set forth as $ for the program at . (Ex D 2 & H 1)
Parent provides a copy of 2013 Tax Return indicating an income of $ .
(Ex K 1) Copy of 2014 Tax Return indicates income of $ . (Ex BB 1)
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 evidence of two years income, 2013 & 2014. Evidence indicates the parent does not have sufficient funds to outlay the tuition and await reimbursement.
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 payment made to ( ) for 2015-2016 school year tuition.
3. DOE shall directly pay to any tuition due for the 2015-2016 School year. to provide proof of attendance in conjunction with any request for tuition.
4. DOE shall provide
.
5. Total amount of tuition to be reimbursed or directly funded is $ .
6. 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.
7. This decision is subject to appeal and review by the State Review Officer. Dated: November 10, 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-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
PARENT
ENTERED 07/21/2015
A Impartial Hearing Request, 07/07/2015, 10 pages
B Findings of Fact and Decision, , dated 1/6/14, 31 pages.
ENTERED 09/03/2015
C Parents' Letter to CSE, 6/12/15, 2 pages
D Enrollment Contract, 7/1/15, 4 pages
E Program Description, '15-'16, 2 pages
F Fall Schedule, '15-'16, 1 page
G Attendance Record, 8/18/15, 1 page
H Tuition Affidavit, 8/14/15, 1 page
I Evaluation, 3/12/14, 11 pages
J Parents' Letter to CSE, 2/14/14, 2 pages
K 2013 US income tax return, 9 pages
L Affidavit of Parent, 11/6/12, 2 pages
M Affidavit of , 11/24/12, 2 pages
N Affidavit of , 11/6/12, 2 pages
O , '15-'16, 1 page
P Educational Progress Report, 6/1/15, 7 pages
Q IEP Goal Scores for '14-'15, 7/2015, 3 pages
R Goal Scores, '15-'16, 6/15, 3 pages
S Evaluation, 6/20/15, 13 pages
T Evaluation, 5/15, 9 pages
U individualized education plan, July 2014 to June 2015, 23 pages
V , 4/2015, 10 pages
W Current Resume of , 2 pages
X Current Resume of , 3 pages
Y Affidavit of , 9/1/15, 1 page
Z Goals, '15-'16, page
ENTERED 10/09/2015
AA Resume of , 2 pages
BB Tax Return, 2014, 20 pages
CC Progress Report, 10/6/15, 3 pages
DD Class Schedule, 2015/16, 1 page
DEPARTMENT OF EDUCATION
ENTERED 08/13/2015
1 IEP, dated 1/23/15, 21 pages
2 IEP Meeting Minutes, dated 1/23/15, 2 pages
3 , dated 6/12/15, 4 pages
4 School Location Letter, dated 6/12/15, 1 page
5 , dated 3/6/14, 5 pages
6 , dated 3/6/14, 3 pages
7 Consideration for , dated 2/4/14, 3 pages
8 Classroom Observation, dated 1/21/15, 1 page
9 Eval, dated 3/4/14, 4 pages
10 eval, dated 3/5/14, 5 pages
11 Eval, dated 2/24/14, 2 pages
12 Eval, dated 4/18/12, 12 pages
IMPARTIAL HEARING OFFICER
ENTERED 74/21/2015
I Notice of Appointment, 07/07/2015, 4 pages
ENTERED 08/13/2015
II Pendency Order, dated 7/21/15, 9 pages
ENTERED 10/09/2015
III Compliance Date Extension, 9/3/15, 3 pages IV Compliance Date Extension, 10/12/15, 3 pages