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FINDINGS OF FACT AND DECISION
Case Number: 163635
Student’s Name:
Date of Birth:
District:
Hearing Requested By: , Mother
Dates of Hearing: 9/5/17 & 9/28/17
Record Close Date: 1/25/18
Hearing Officer: Elizabeth Hill, Esq.
Correcte
NAMES AND TITLES OF PERSONS WHO APPEARED ON September 5, 2017
FOR PETITIONER:, Esq., Attorney
FOR RESPONDENT:, District Representative, Teacher — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON September 28, 2017
FOR PETITIONER:, Esq., Attorney
Director, FOR RESPONDENT:, District Representative, Observer — Parents
A. INTRODUCTION
On October 11, 2017, the New York City Department of Education (“DOE” or
“Respondent”) appointed me to act as the Impartial Hearing Officer (“IHO”) in this case, which is brought under the federal Individuals with Disabilities Education Act, 20 USC §1400 et seq. ( “IDEA”), by (“Petitioner”) through her mother, . (“the Parent”) The Parent requested this Impartial Hearing by filing a Due Process Complaint (“DPC”) with the DOE on October 6, 2017. (Ex.A) That DPC was amended on March 20, 2017. (Ex.B) Petitioner was represented at the hearing by her attorneys, and . Respondent was represented by District Representatives and .
Petitioner is . At the time that the instant 2016-2017 EIP was drafted she was
B. CLAIMS & REQUESTS FOR RELIEF
Petitioner claims that she was denied a free, appropriate, public education (“FAPE”)
during the 2016-2017 school year, and she seeks reimbursement of tuition for aprivate school at which she was unilaterally placed, She also seeks reimbursement for .
More specifically, as to the denial of FAPE, Petitioner asserts that her placement in an
Classroom was inappropriate and that she did not receive copies of the Individualized Education Program (“IEP”) and school location letter prior to the beginning of the 2016-2017 school year.
C. FINDINGS OF FACT
I find the facts in this case to be as stated in Sections A and B above, and in the Decision, Section D, below.
D. DECISION
1. THE LAW OF TUITION REIMBURSEMENT
Petitioner seeks tuition reimbursement. Under IDEA, a Parent may place their child in a private school unilaterally and then require their school district to reimburse them for tuition where (a) the school district has denied the child a free, appropriate, public education, (“FAPE”)
and (b) the private school is appropriate for the child; and (c) the balance of the equities weigh in favor of the Petitioner. lorence County Sch. Dist. our v. Carter, 510 U.S. 359 (1993); Burlington School Committee v. Mass. Dep’t of Ed., 471 U.S. 359 (1985); 20 USC §1412(a) (10)
(C). The burden of proof on FAPE and the equities is on the DOE. The burden of proof on appropriateness of the unilateral placement falls on Petitioner. NY Educ. Law §4404(1)(c). The standard of proof is a preponderance of the evidence.
2. THE MAILING OF THE IEP AND SCHOOL LOCATION
LETTER DID NOT DENY PETITIONER FAPE.
“[A] parent's IDEA right to meaningfully participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school”. V.S. ex rel. D.S. v. New York City Dept. of Educ., 25 F.Supp.3d 295, 299 (EDNY 2014); C.U. v. N.Y.C. Dep't of Educ., 23
F.Supp.3d 210 (SDNY 2014). A violation of this right is a denial of FAPE. See, e.g., V.S., supra., at 301; C.U., supra, at 227–28. In addition, a Parent is entitled to Prior Written Notice of any changes to the IEP. 8 NYCRR 200.5(a); 8 NYCRR 200.4(g)(1)(i).
Evidence of the office procedure followed in a regular course of business with respect to a mailing gives rise to a presumption of receipt. Meckel v. Continental Resources Co., 758 F.2d
811 (2d Cir. 1985) The DOE Prior Written Notice has the School Location Letter as an attachment. (Ex.6,7) Both are dated May 24, 2016. of the IEP team testified to the office procedure pertaining to Prior Written Notice:
: The prior written notice letter that's in evidence as Exhibit 6; did you send out that document to the parent?
: What happens is we – we fill it out in the computer. We don't physically send it out. When it's there as an IEP, what happens is, we send the completed
IEP with the information filled out in the computer and then the desk people send it out.
Accordingly, he established a presumption of mailing and receipt of the school location letter and IEP. The Parent does not rebut the presumption.
The Parent attended the IEP meeting on March 16, 2016. (T.155) She was aware that she needed a school location. (T.180, 181, 193) She had been through the process of assessing a public school the previous school year. (T.195, 196) She testified that she delayed enrollment at pending receipt of the school location letter. (T.181) Yet she testified that she did not actually contact the CSE to ask for this information until August 12, 2016 -- five months after the IEP meeting. (T.179, 180) It is not credible testimony that she waited five months to request this crucial information. Cf. .B. v. New York City Dept. of Educ., 132 F.Supp.3d 522 (SDNY
2015) (denial of FAPE where parents did not receive a school assignment for four months after the IEP Meeting, despite numerous proactive contacts with the DOE)
Parenthetically, the Enrollment Contract for is undated (Ex.K) and the Affidavit of the Registrar concerning payments on tuition (Ex.L-1) is dated June 5, 2017, which indicates that the Parent did not wait to enroll her child until she received the School Location
Letter.
Further, the August 12, 2016 letter from her lawyer to the DOE is not a request for the school location letter and IEP. It is a statement that the documents received are not appropriate and that therefore a unilateral placement is justified:
The Parents have not received an appropriate IEP or school placement recommendation… As a result,… the parents have been left with no choice but to set up their own program and placement…
(Ex. D) (emphasis added) Therefore, the Parent never asked for the school location letter and IEP at all. Parent’s counsel obtained copies of both documents in the course of litigation, in February 2017, and the Parent then went to see the recommended school. (T.181, 182, 183) Her purported difficulty in contacting the school at that point did not prevent her ultimate visit.
(T.183, 184) Were there any other circumstances impeding her timely review of the school, there might be a finding of denial of FAPE. Cf. .B., supra. But there are none.
The Parent also asserts that she did not receive a copy of the IEP. Where the child already has an IEP, the parent is not entitled to a copy of the new IEP in the first instance. 8 NYCRR 200.4(g)(1)(i). They are entitled to a copy of the document modifying the IEP, in this case the Prior Written Notice. 8 NYCRR 200.4(g)(1)(i). Upon request, they are entitled to a copy of the new IEP. 8 NYCRR 200.4(g)(1)(iii). Here, there was no request.
In sum, the IEP, Prior Written Notice and School Location Letter were mailed and received ona timely basis. There is no claim for denial of FAPE based on these mailings.
3. THE CLASSROOM RECOMMENDATION DENIED
PETITIONER FAPE.
The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free, appropriate, public education [“FAPE”] that emphasizes special education and related services designed to meet their unique needs.” Bd. of Educ. v. Rowley, 458 U.S. 176, 17991 (1982). A "reasonableness" standard governs the provision of special education to eligible students with disabilities. Id. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. Endrew .v. Douglas County School District, 137 S.Ct. 988, 999 (2017).
An assessment of FAPE is made on the information available to the IEP team at the time of drafting. R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 185-86 (2d Cir. 2012), cert.
denied, 133 S. Ct. 2802 (2013) (“An IEP must be evaluated prospectively as of the time of its drafting.”)
At and before the March 28, 2016 IEP meeting, the IEP team considered a School Progress Report (Ex.3), Progress Report (Ex.4), Social History (Ex.5) and most importantly, the Evaluation of , Ph.D. (“ ”) (Ex.E). We know that the was considered because its test results are recited on page one of the IEP. (Ex.1) The School Progress Report, Progress Report and Social History are subjective. But the assessed
Petitioner’s academic level using a recognized standardized test, the . The was administered when
Petitioner was in and the IEP was drafted when she was in . (Exs.1,
E) But the results are still probative of her academic level versus her grade level.
The results of the test administered for the indicate that
Petitioner
Based in part on this information, the IEP team decided that an I
Classroom __J would be best for Petitioner. An L_ classroom has LJ students and up to students (T.113, 114) There are two teachers, (T.35) The teacher presents the curriculum, and the teacher helps the children learn it. (T.35, 36, 67, 68) While the test results support the idea that Petitioner could benefit from this class room in the area of , Respondent offers no explanation of how Petitioner could benefit from a curriculum pitched .
In addition, the diagnoses Petitioner with and recommends a room to minimize distractions.
While testified to the advantages of an room, he did not address its suitability for a child with . (T.113 )
In sum, Respondent does not establish FAPE by a preponderance of the evidence. [1]
4. THE BALANCE OF THE EQUITIES WEIGH IN PETITIONER’S
FAVOR.
The chief equitable consideration is whether the parent provided ten days’ written notice to the DOE of the placement of their child in a private school. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I). “[T]he purpose of the notice requirement is to give the district “a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District.” W.M., 783 F.Supp.2d at 504[FULL
CITE]; R.B. v. N.Y.C. Dep't of Educ., 713 F.Supp.2d 235, 248 (S.D.N.Y.2010) (“[T]he IDEA's notice requirement gives 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.”)
Petitioner supplies a copy of her August 12, 2016 “Ten Day Notice” to the DOE. (Ex.D)
The letter was sent to the DOE by Petitioner’s lawyer. (T.180)
In addition, the Parent attended the IEP meeting, participated in the meeting and supplied the . Although the Parent appears to have disputed receipt of the IEP, Prior Written Notice and School Location Letter in bad faith, nevertheless the balance of the equities weigh in her favor.
Accordingly, Petitioner states this prong of the tuition reimbursement analysis.
5. THE PRIVATE SCHOOL IS NOT APPROPRIATE.
To be appropriate, a Parent’s unilateral placement must be “‘reasonably calculated to enable the child to receive educational benefits,’ such that the placement is ‘likely to produce progress, not regression,’” rank G. v. Board of Ed. of New Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (quoting Board of Ed. of Hendrick Hudson Central School District, Westchester Cty. v. Rowley, 458 U.S. 176, 203 (1982) and Walczak v. lorida Union ree School District, 142 F.3d 119, 133) (2d Cir. 1998)). More precisely,
[t]o 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.
rank G.., supra. (emphasis added).
A unilateral placement is not appropriate where its program does not address the special needs of the student and the school’s “ based curriculum, which apparently include[s]
significant and application, ha[s] nothing to do with [the student’s] special needs.”
Covington v. Yuba City Unified School Dist., 780 F.Supp.2d 1014 (E.D.Cal. 2011)
The unilateral placement at issue is Program.
(“ ”) At first blush, seems appropriate. It meets the recommendations as to the type of education appropriate for Petitioner. The school provides a small, special education class . (Ex.F-1) It offers individualized instruction and a multi-modality approach. (Ex.F)
But offers only a limited amount of actual instruction . (Exs.N-2, E) The academic school day at (Ex.G) There was no showing that such limited study time is sufficient to address Petitioner’s extensive delays.
It bears mention that in addition to , there is also . (Ex.G) (Ex.G) Moreover, it is taught by a
__J. There is no showing that he has any training as a teacher, let alone as a teacher. While a school need not have teachers or state-certified teachers to qualify for reimbursement, ( rank G., supra (citing Carter, supra) teachers must have some credentials. Moreover, the poor quality of the teaching in is demonstrated by the fact that Petitioner made no progress during the 2016-2017 school year.
(Ex.H,J) We know this failure to learn is not due to Petitioner’s abilities, (Ex.E)
Further, approximately of the academic day – more than a third of the day - at is comprised of which the school itself classifies (Ex. G; T.206,
207). Here, as in Covington, the unilateral placement is not appropriate. Petitioner’s special needs are not sufficiently addressed, in part because more than one third of the academic day addresses . In addition, are largely taught by , and there is no showing of their teaching credentials.
Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit and may be considered in the evaluation of the private placement.
rank G., supra. Petitioner supplies her 2016-2017 report cards as evidence of progress.
(Exs.H,I,J) But these internal assessments based on unknown and unique criteria are not probative.
. (Ex.3) There is no definition of “expectations”. Standardized test scores might provide reliable evidence of the degree of progress, but no standardized test scores were proffered. In sum, there is no credible showing of advancement.
Finally, tuition reimbursement is not appropriate in this case because is a school. Lemon v. Kurtzman, 403 U.S. 602 (1971); see also: Committee or Public Ed.
and Religious Liberty v. Nyquist, 413 U.S. 756 (1973)(regarding tuition reimbursement) In
Lemon, the court found that Rhode Island and Pennsylvania statutes authorizing state aid to non-public, sectarian schools violated the Establishment Clause of the First Amendment. 2 In addition, it ruled that it is not permissible to fund only the non-sectarian education at the sectarian school because, as a practical matter, the funds will support the school as a whole.
In sum, a preponderance of the evidence does not establish that “provides educational instruction specially designed to meet the unique needs of [Petitioner]” and public funding of schools is impermissible. For these reasons, reimbursement for tuition at and attendant is not granted.
ORDER
The requested relief is denied.
SO ORDERED:
Elizab th Hill
By the same rationale, federal funding is unconstitutional as well. Date : 2/13/18
DOCUMENTATION ENTERED INTO THE RECORD
PARENT Exhibits
A Due Process Complaint, 10/5/16, 7 pages
B Amended Due Process Complaint, 3/20/17, 11 pages
C Due Process Complaint, 3/20/17, 11 pages
D Lettter to with Email confirmation, 8/12/16, 4 pages
E Evaluation, 1/16/15, 13 pages
F Program Description, 2016-2017, 2 pages
G Class Schedule, 2016-2017, 1 page
H Parent-Teacher conference Checklist, Nov. 2016,
5 pages
I Progress Reports, 1/2017, 18 pages
J Parent-Teacher Conference Checklist, Mar. 2017,
5 pages
K Enrollment Contract, 2016-2017, 1 page
L Tuition Affidavit, 6/5/17, 1 page
M 2015 Tax Return, 10/7/16, 2 pages
N Individualized Education Program (IEP), 6/12/15, 15 pages
DOE Exhibits
1 Individualized Education Program, 3/28/16, 16 pages
2 CSE Minutes, 3/28/16, 1 page
3 School Progress Report, 3/2016, 1 page
4 Progress Report, 3/3/16, 2 pages
5 , 3/21/16, 1 page
6 Prior Written Notice, 5/24/16, 3pages
7 School Location Letter, 5/24/16, 2 pages
IHO Exhibits
I Parent Closing Statement, 1/25/18, 5 pages
Footnotes
[1] The IEP also provided for _ _- J _ ~ - - and . But Petitioner does not contest these services and provided them.