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:
District:
Hearing Requested By: Parent
Date of Hearing: October 14, 2015
November 13, 2015
Actual Record Closed Date: November 30, 2015
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2015
Attorney for Parents — Student
Parents
CSE, Representative for the — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13,
2015
Attorney — Student
Parents
Director — Student
Teacher — Student
Student
CSE, Representative for the — DOE
INTRODUCTION
On 09/16/2015, 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) (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.
On 11/13/2015 parent made a motion to extend the compliance date by 30 days to allow receipt of the transcript. Motion was granted and compliance date was extended to
12/14/2015.
This matter was instituted by the impartial hearing request dated 08/31/2015 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for 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 A 1)
Relief sought includes funding or reimbursement for unilateral placement at the
( ). (Ex A 5)
Parent hearing request also included relief of reimbursement for evaluations, , reimbursement for related services. (Ex A 6)
is currently being supplied by the DOE for the student. (T 51-52)
Related services are being delivered to the student as indicated herein and the cost is included in the student tuition. (T 51-52)
BACKGROUND
Most recent IEP of 05/14/2015, prepared in anticipation of the student ’s upcoming school year, includes: student age of , classification of , levels , (Ex B 1); ,
, , , (Ex B 2); ,
, , ,
, , ,
, , and (Ex B 3); recommendations include a for and weekly for a minute session, a (Ex B 9); , of for and (Ex B 12) and (Ex B 13)
THE PARENT’S POSITION
( ) presented the parent’s position.
Parent “is seeking reimbursement for the - -
and a permanent order for . As
I stated the Department is currently providing it however we would like it formalized as part of the order…” (T 53)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as the school co-director. (T 12-13)
has approximately student, school is , student ages range from to about , “
.” (T 13)
classes are capped at students, with teacher and teacher. (T 13-14)
is familiar with the student who has attended since this past September. (T 14)
Student is , a ,
, and various assessments. (T 14-15)
There are children in the of who “ ” (T 15)
needs to work on , and .
“… is working with for and
But they're also working on as well and
” (T 16)
Class uses with a trained teacher. (T 16)
Student was assessed by the . Student has so he was “
” (T 17)
Student receives related services of and with licensed providers.
(T 18)
is provided weekly and a week .
(T 18-19)
include as a primary goal and he is making progress.
(T 18-19)
Student is benefiting from the program. “
” (T 19)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as a head classroom teacher. (T 22-23)
is the student’s current teacher. (T 23)
Class has students, a teacher and an teacher. (T 23)
Student’s include: ,
(T 23) and a . (T 24)
The classroom is appropriate for the student. (T 24)
Student is working on the same skills. (T 24)
Presently student is and (T 24) as well
as , , and . (T 25)
Student has benefited from the class. class has students which allows the teacher to and . (T 24-25)
Student is for
. (T 26)
is used to ,
, and .. (T 25-26)
Student has benefited from the class and .
(T 26)
is used (T 26) which benefit’s the student
. (T 27)
Student ability to and . (T 27-28)
Student has . (T 28)
are used to help the student with and
. This includes ,
, , ,
. (T 28-29)
Student benefits from . (T 29) He is
, the enables staff to
, teacher uses , and there has been improvement on . (T 29-30)
Student at the beginning of the year: “he was
When it comes to his and . So if he's . But when it comes to , which makes his . He also needs
.” (T 30)
to address include: “
… …
. We also
because …He's
working on
. And the teacher she
and .” (T 31)
Student improvement includes and
. (T 31-32)
Presently student level is estimated to be at level, though . (T 35)
At the beginning of the year the student was . “
” (T 36)
Progress has been made by . (T 36)
Student is described as . (T 32)
This issue exists in . (T 32) issues include
. (T 34)
To address : “…in order to we have so that if he he can and
. and
…if he is he can
” (T 33)
PARENT WITNESS
( ) reviewed her educational and professional background and testified as the , and the student’s teacher. (T 38-39)
“I provide times a week. in a which is , times I and time I teach
.” (T 39)
issues include: “ ….he has
…difficulty with …difficultly
with and as well as
“(T 39)
to assist student include: “… …
… , , … . So
and
, , and we
… …
…” (T 41)
Student has benefited from (T 41) and has made progress. (T 42)
issues arise during where he
. (T 42)
to address include: “ …
, , -- … …
.” (T 43)
Student has benefited from . (T 44)
Student has difficulties with . (T 44)
To address this issue: ”…we work …we do
…when we do …we do
, we , like,
…” (T 45-46)
Student has benefited from . (T 46)
Student had difficulty with . (T 46)
are used to address this issue and the student has benefited.
(T 46-47)
PARENT WITNESS
( ), the student’s mother, first noticed
with her child in . (T 49)
Student was having problems and and
. (T 49)
In the student began to have difficulties with . Student would , and . (T 49-50)
Student attended public school for and . (T 50)
attended the IEP meeting of 05/14/2015. (T 50)
Student began attending this year for . (T 51)
would send her child to an appropriate public school placement. (T 51)
DEPARTMENT OF EDUCATION POSITION
( ), District Representative, presented the DOE position.
“The Department at this point concedes that we did not provide a free, appropriate public education for this student for the 2015/2016 school year.” (T 5)
DOE did not submit any evidence.
DOE did not contest any evidence presented by the parent.
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 Committee on Special Education (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 conceded it had not offered the student a FAPE for the 2015-2016 school year. (T 5)
I find that the DOE failed to offer the student a FAPE for the 2015-2016 school year.
The district conceded that it 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 did not contest any evidence presented by the parent.
PLACEMENT
Evidence and witnesses detailed the student ’s educational needs and appropriateness of the services at for the 2015-2016 school year.
Credible and consistent testimony regarding included that it addresses the needs of students. This included those with
, , and
, and or “
” (T 13)
Student’s include: ,
(T 23 & 27-28) and . (T 24 & 32)
This area of need is addressed by (T 26) which benefit’s the student (T 27),
, ,
, ,
(T 28-29) , , and
. (T 33)
Student are addressed students, a teacher and teacher. (T 23)
Student’s special needs in the area of are addressed with
(T 14-15 & 26) who work on
, and (T 16) the use of to , , and
. (T 16 & 25-26)
Student is an area of student difficulty addressed with
(T 30) , , , and . (T 31)
Student needs are detailed and addressed in the program. (T 24-25)
Student’s special needs in the area of are addressed with and (T 24-25) which is “
” (T 17)
Student needs, which include and , are met with weekly and a week . (T 18-19, 32 & 34)
area of need is met through
. (T 39)
Witness detailed student (T 39, 42, 44, 46) and detailed services designed to meet the student’s needs. (T 41, 43, 45-47)
Testimony is consistent and unopposed that the placement is appropriate (T 24) beneficial to the student (T 19, 26, 29, 41, 44, 46 ) and the student is making progress (T 29-30, 31-32, 36 & 42)
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 , 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 .
Student IEP includes need for . (Ex B 12)
I find the student is entitled to services.
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting (T 50, Ex B) communicated her concerns with the DOE including a ten day notice of intent to unilaterally place the student at (Ex E) and in no way frustrated any attempt of the DOE to deliver a FAPE.
Student attended public school for and (T 50) and parent would send her child to an appropriate public school placement. (T 51)
contract is presented evidencing a tuition for the 2015-2016 school year of $ . (Ex G 1) Contract is signed by the parent (Ex G 3) who has made payments to under the terms of the contract as indicated in Exhibit
H.
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 student tuition applicable to the 2015-2016 school year, up to the amount of $ .
3. DOE shall provide of the student
for the 2015-2016 school year.
4. DOE shall provide parent and with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.
5. This decision is subject to appeal and review by the State Review Officer.
Dated: December 2, 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 10/14/2015
A Impartial hearing request dated 8/31/15, 8 pages
B IEP dated 5/14/15, 15 pages
C Meeting notice dated 5/5/15, 1 page
D dated 2/4/15, 1 page
E Parent correspondence to CSE dated 8/25/15, 2 pages
F update observation dated 5/6/15, 3 pages
G 2015/2016 school contract, 4 pages
H 2015 proofs of payment, 4 pages
I 2015/2016 school schedule, 1 page
DEPARTMENT OF EDUCATION
NONE
IMPARTIAL HEARING OFFICER
ENTERED 10/14/2015
I Notice of appointment dated 9/16/15, 4 pages
II Subpoena to Department of Education dated 10/8/15, 1 page
III Notice of appearance dated 9/3/15, 1 page
ENTERED 11/30/2015
IV Grant of Extension of Compliance Date, 11/27/2015, 3 pages