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FINDINGS OF FACT AND DECISION
Case Number: 163673
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 6, 2017
Actual Record Closed Date: January 9, 2017
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2017
Attorney for Parents — Parents
Mother of Student — Parents
Father of Student — Parents
(by phone) — Parents
(by phone) — Parents
District and New York City Department of Education Representative — DOE
The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA) on January 6, 2017 for the hearing on the merits of the case. I was appointed, after the recusal by one or more previously-appointed impartial Hearing Officers, as the Impartial Hearing Officer having jurisdiction of this proceeding, by notification from the New York City Department of Education’s Impartial Hearing Office, dated October 12, 2016. As the hearing was somewhat brief; the issues somewhat limited due to the concession by the District that it had failed to offer Student an free, appropriate public education for the 2016-2017 school year; as the exhibits received in evidence were quite specific; and as I have had the opportunity to review my notes taken during the proceeding; I have chosen to render this Decision without the benefit of the Transcript of Proceedings The Record was Closed on January 9, 2017.
This proceeding was commenced by Student’s Parents, by the filing of a Due Process Complaint Notice sent on Parents’ behalf by , to the New York City Department of Education’s Impartial Hearing Office, dated October 5, 2016 and received by said Office on that date.
Parents allege in their Due Process Complaint (Exhibit A) that District and the New York City Department of Education failed to offer Student a free, appropriate public education (FAPE) for the 2016-2017 school year, as District’s Committee on Special Education (C.S.E.), had failed to prepare any Individualized Education Program (I.E.P.)
for Student for the 2016-2017 school year or offer Student any placement in which Student might receive any special education program. As a result, Parents unilaterally placed Student in the at for the 2016-2017
school year.
Parents sought in this proceeding reimbursement for the costs associated with Parents’ unilateral placement of Student in the at for the 2016-2017 school year, as well as the cost of evaluations. However, at the close of proceedings on January 6, 2017, Parents, on the Record, withdrew their request for reimbursement of the cost of any evaluation, leaving as the singular issue to be determined in this proceeding whether Parents are entitled to reimbursement or direct payment of tuition for their unilateral placement of Student at the for the 2016-2017 school year.
It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and; (3) equitable considerations support the Parent’s claim.
Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v.
Departm ent of Education, M assachusetts, 471 U.S. 359 (1985); A pplication of a Child with a Disability , Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the Parents to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a Parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that Parents who unilaterally decide to place their child do so at their own financial risk.
Burden of Proof
Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. A free, appropriate public education 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). It is such requirement, i.e., that the program offered to Student must be "reasonably calculated to provide some 'meaningful' benefit", that I find is the appropriate criterion to be employed in determining whether the obligation imposed upon a party has been satisfied.
The burden of initially establishing that a student has received a free, appropriate public education rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request for reimbursement would cease at that point, for if a district has offered an appropriate program, a parents’ right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its proffered program, I would then proceed to determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing the appropriateness of such program rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for relief must be denied.. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents.
DISCUSSION
Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). However, at the commencement of proceedings on January 6, 2017, District Representative advised that District and the New York City Department of Education were offering no exhibits into evidence and would call no witnesses to testify on behalf of the District or the New York City Department of Education. In response to my specific question, District conceded that it had failed to offer Student a free, appropriate public education.
I find, therefore, that the District and the New York City Department of Education have defaulted in this proceeding and that such default results in the determination that District failed to sustain its burden of establishing that it provided Student with a free, appropriate public education for the 2016-2017 school year.
Having found that District failed in its burden of establishing that it had offered Student a free, appropriate public education, it becomes necessary that I review the appropriateness of the unilaterally-selected placement of Student in the at . As previously noted, Parents have the burden of establishing the appropriateness of such placement. As I have determined that the appropriate standard to judge the appropriateness of the program that should have been provided to Student by the Department of Education to be one that is "reasonably calculated to provide some 'meaningful' benefit", I find and determine that it would be unfair and inequitable to impose a more stringent burden upon Parents. Thus, I shall employ the same standard and criterion upon Parents as I would have placed upon District - that is, whether the program and placement unilaterally selected by Parents was "reasonably calculated to provide some 'meaningful' benefit".
Student is presently , having been born on
. However, when Student began attending in September of 2016, Student was and entering . Student had, at some time prior, been determined by District’s Committee on Special Education to be in need of special education and related services. In the Record before me is the Individualized Education Program (I.E.P) that District’s Committee on Special Education (C.S.E.) had prepared for Student on January 26, 2015 (Exhibit B). According to the provisions of that I.E.P., Student was classified as being . The
I.E.P. noted that Student had
. Also noted by the C.S.E. in that I.E.P. were that Student had . The I.E.P. (Exhibit B)
also noted the results of a evaluation that had been conducted in March of 2013 which had reported that (Exhibit B). The
I.E.P. also noted that Student evidenced
. It also noted that Student demonstrated
, as well as .
As previously stated, Parents unilaterally placed Student at for the 2016-2017 school year and specifically in its . Parents presented an Affidavit made by (Exhibit J). In that Affidavit, sworn to on December 9, 2016, Affiant stated that he is the , and has been such since founding the School in . According to the Affidavit of Affiant , the offers a curriculum to approximately students, with more than , enrolled in the School’s
. Affiant stated in his Affidavit that the was developed by when it sought to become a facility that could offer an appropriate program . Affiant noted that the School maintains , with most classes having in its program. The Affiant also noted the School’s use of , described as . It was noted in his Affidavit that such program benefits students with and assists with their . I note that District Representative consented to the introduction into evidence of the
Affidavit. I further note that District Representative waived any opportunity to cross-examine regarding any allegation stated in the Affidavit.
Parents also presented the testimony of Witness . Witness testified that he is Student’s teacher during the 2016-2017 school year.
Testimony was provided by Witness regarding the particular manner in which the Program was presented and how it directly focused on the deficits exhibited by
Student. Witness also described how the provides its participants, including Student, with , which the witness described as
“ ”.
. Witness further testified that he also
. Witness
displayed awareness of Student’s deficits and described how Student’s participation in the addressed those deficits. It was the opinion of Case No. 163673
Witness that Student was benefitting from his participation in the program.
Parents also presented the testimony of Witness , who testified that he was Student’s Teacher during the current school year. Witness , who is a certified
Teacher, described his class, noting that
, but that
. Witness testified Student’s Class had a total of students, . Witness opined that Student benefitted from the and from the that Witness was able to provide to Student. Witness expressed his opinion that Student benefitted from his participation in the and in her attendance at .
I also reviewed the sworn statement of (Exhibit K), which noted that Student was in his class, , and that, as a teacher, he utilized
, as well as utilizing the at the School. The Affidavit of Mr. noted that Student exhibited , which impacted , but had made progress in that area. The Affidavit also noted Student’s deficits, but opined that Student had benefitted by being in the program and in his class.
I recognize that all of the staff of who offered information and opinions, either in testimony or in affidavit, regarding Student’s progress at that School were necessarily limited by the fact that Student has been in that placement for less than four months. I also had some concern that, with the program being afforded to Student and Student’s reported , Student’s
(Exhibit G) reflected only moderate success . Perhaps such can be attributed to Student’s newness to the School and that more progress might be seen as the school-year progresses.
However, it is clear from my review of the evidence and testimony received in this proceeding that the program unilaterally selected for Student by his Parents, and Student’s placement in its , was reasonably calculated to provide Student educational benefit and is capable of addressing Student’s special education needs. It is, therefore, my finding and determination, after a review of the testimony of the witnesses appearing in this proceeding and a review of the contents of the Affidavit of and that of Teacher , that Parents have successfully borne the burden of establishing the appropriateness of their unilateral placement of Student in the at for the 2016-2017 school year.
I also find the equitable considerations in this matter favor an award of reimbursement to Parents of the costs incurred by their unilateral placement of Student in the at for the 2016-2017 school year. As previously noted, Parent had advised the District, by his letter of May 4, 2016 (Exhibit D), that Parents would be placing Student at if an appropriate program was not offered by District’s C.S.E. – and the Committee, having been forewarned, never convened or offered Student either a program or a placement. I do not find that Parents’ execution of the Contract with in March of 2016 (Exhibit H) for Student’s placement at that facility for the 2016-2017 school year displays anything but the parental concern that Student have an appropriate placement for the upcoming school year in the event that District’s C.S.E. failed in its obligation to provide Student with an appropriate program and placement – a concern that, in hindsight, was a wise decision.
Parents signed a Contract with for Student’s attendance at that facility and in its , dated March 15, 2016, which was accepted by the School on March 17, 2016 (Exhibit H). That Contract required Parents to pay tuition in the School’s program, plus for Student’s participation in its , as well as a of and a of , for a total of . I find, however, that it is inappropriate to factor into the costs incurred by Parents in their unilateral placement of Student at of the , which includes
(Exhibit D) or the
, which, as described by Affiant , is to cover the cost of
- and that any amount unexpended is returned to parents. I therefore reduce the above amount by the sum of – leaving a balance of .
Parents have submitted proof of payment made to on March 15, 2016 in the amount of . That amount shall be paid to Parents as reimbursement. However, no testimony was submitted, either by Parents or by School witnesses, as to any other payment made by Parents. I can only assume, therefore, that the remaining balance is owed to the School. Therefore, I shall direct that the balance remaining, in the amount of , be paid directly to .
ORDER
Based upon the above review, it is
HEREBY ORDERED that District and the New York City Department of Education pay to Parents as and for reimbursement for Student’s attendance at for the 2016-2017 school year, the sum of
; and it is
FURTHER ORDERED that District and the New York City Department of Education pay to the sum of , representing the balance due to such School.
Dated: January 12, 2017
JAMES P. WALSH, ESQ.
Impartial Hearing Officer JW:
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 RECORD ON JANUARY 6, 2017
A. Impartial Hearing Request, dated 10-5-16 (5 pages; Parents)
B. Student’s I.E.P. as prepared by District’s C.S.E. on Parents 1-26-16 (18 pages; Parents)
C. District’s Due Process Response, dated 10-14-16 (3 pages; Parents)
D. Correspondence from Parent to C.S.E. Chair, dated 5-4-16 (2 pages; Parents)
E. Correspondence from Parent to C.S.E. Chair, dated 8-25-16 (2 pages; Parents)
F. Copy of Check by Parent to, dated 3-15-16 (1 page; Parents)
G. Student’s Parent 2016-2017 school year – (1 page; Parents)
H. Contract between Parent and, dated 3-15-16 (4 pages; Parents)
I. Student’s Daily Schedule at – 216-2017 school year (1 page; Parents)
J. Affidavit by, sworn to on12-9-16 (4 pages; Parents)
K. Affidavit by, sworn to on 12-20-16 (4 pages; Parents)