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FINDINGS OF FACT AND DECISION
Case Number: 163808
Student’s Name:
Date of Birth:
District: LJ Hearing Requested By: Parent
Date of Hearing: March 1, 2017
July 12, 2017
Actual Record Closed Date: January 16, 2018
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2017
ESQ., Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2017
ESQ., Attorney — Student
Parents
Director, (Via Telephone) — Student
District Representative — DOE
Teacher (Via Telephone) — DOE
(Via Telephone) — DOE
INTROD CTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding L_ The hearing was convened at the written request of the Parent by letter dated October 14, 2016. (Parent Exhibit A) A hearing was held on March 1, 2017, and July 12, 2017, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York.
The parties submitted post-hearing briefs. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.
In scheduling the hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]
BACKGRO ND
_J is an for the
2016-2017 school year. .
is diagnosed . The DOE’s Committee on Special Education (“CSE”)
convened in preparation for the 2016-2017 school year on March 11, 2016, and developed an Individualized Education Program (“IEP”) for The CSE recommended aprogram for the 2016-2017 school year, which included:
with related services. The DOE informed the Parent that the placement identified for for the 2016-2017 school year was at at .
By letter dated June 17, 2016, Parent’s counsel advised the DOE that the Parent believes that the DOE failed to offer a Free Appropriate Public Education (“FAPE”) to for the 2016-2017 school year and that, if there were no offer of a FAPE made, the Parent would be placing at and seeking tuition payment from the DOE.
(Exhibit C) By letter to the CSE dated June 21, 2016, the Parent confirmed that, on June 18, 2016, she had received a package containing the IEP dated March 11, 2016, and a school location letter and prior written notice. (Exhibit H) She expressed her concerns and disagreement with the IEP, the CSE’s recommendation, and the placement offered.
She informed the CSE that she had reserved a placement at in the event that the DOE does not address her concerns and offer an appropriate program and placement. By letter dated October 14, 2016, Parent’s counsel submitted a request for an impartial hearing asserting that the DOE failed to provide a FAPE to for the 2016-2017school year and is seeking tuition payment for placement at . (Exhibit A)
The DOE sent a “Due Process Response,” dated November 3, 2016, to Parent’s counsel on November 2, 2016. (Exhibit B) On the response form, completed by an attorney for the DOE, all areas with blank spaces to be filled in were left blank. The only information provided was at the end of the form, under “Additionally.” There, it stated, in relevant part, that, “A Prior Written Notice was provided on or about 6/10/2016.” Since the DOE did not submit any documents into evidence, there is no “Prior Written Notice” in evidence. In addition, there is no IEP in evidence.
POSITIONS OF THE PARTIES
THE DOE’S CASE
It must be noted that the DOE did not submit a timely disclosure of documents to the Parent and, therefore, there were no documents submitted into evidence by the DOE.
The DOE’s suggestion that its documents could be presented as evidence in a post-hearing submission was, of course, rejected. (T. 20, 22)
The DOE presented the testimony of ,a assigned to the CSE. She is responsible for participating in the creation of the IEP’s for students who attend , including could not recall the IEP meeting for in March 2016. The information she used in her testimony was based on her review of documentation with the DOE’s advocate the day prior to the hearing. She explained that she could not say if her testimony was from her recollection or from what she reviewed the day before the hearing. She questioned whether it was “fair” to expect her to have a clear and independent recollection of the meeting. (T. 31-38)
participated in the March 2016 meeting for as the and district representative. She explained that the CSE recommended a program in an classroom with the related services of , and . She stated that provided the information
regarding .
When academic demands are placed on , his teacher reported that
.A was created by the CSE and so that whoever is working with would be prepared to deal with those . stated that . explained that a program, and specifically a classroom, is designed to address a student’s and his academic learning. The program was appropriate for , in opinion,
, and his can be addressed in that setting. Hewould benefit from the schoolwide program of positive reinforcement, his individualized support, and the related services.
(T.39-49)
is a Teacher for the
DOE at . described as an school consisting
of classrooms for students with special needs. All related services are provided in the school, , which is held every month.
. The only time the students in the program are with the students is during lunch, although they are all together on one side of the cafeteria. stated that an IEP recommending: a program in an 1 classroom; , , ; parent training and ; and including a , could be implemented in her school. She has not met or his family. (T. 67-72; 73-74)
THE PARENT’S CASE
is the Director of Special Education at .
, and specializes in working with students on the . There are currently students in the school, . In addition to the teachers, the school has teaching assistants,
, a coordinator and job coaches, and licensed related service providers. There are also two intervention specialists, and all staff members are trained in
Collaborative Problem Solving, a methodology developed by . She explained that is in the at the school, . The students are hand-selected in order to create a well-rounded classroom of students who can gain from the strengths of the others. The curriculum is individualized.
Methods under the “umbrella” of are used in the classroom.
There is professional training provided to the staff, including training on associated with and how to track the discrete trial data that the teachers collect and enter into the students’ program books. The teachers also have the opportunity to participate in outside professional development workshops to develop their skills. Team meetings are held at least twice a month, during which all classroom staff and all providers come together for approximately 45 minutes to discuss each of the students in a class. There is a sharing of information and strategies among all those working with a student.
. The school provides monthly group training to families, which may involve a related service provider’s presentation on strategies that can be used in the , or someone coming in from outside of the school, for example. There is also individual parent training provided. (T. 80-102; 140-141)
describes
. stated that class in the 2016-2017
school year had students .
He received the related services of , , and during the 2016-2017 school year.
(T. 102-124)
participated in the CSE meting held on March 11, 2016. She did not agree with the CSE’s recommended program for She expressed to the CSE that it was too large of a class for him and that not all students were on the .
There are very specific ways to work with students on the . Students who are not on the and have that need to be managed are usually under a modification system with a system of rewards and consequences. Such a system would really be detrimental to discussed this at the CSE meeting. She also noted that needed an approach, as it was working for him and he was doing well. The reports showed that it was clearly working for him. The CSE could not say if there would be an approaching the recommended program. At the meeting, was also discussed, and
. (T. 125-132)
testified that, even in a class of only students, and that it would “absolutely not” be appropriate to place in a program. (T.
125; 133) testified that class at was appropriate for the 2016- 2017 school year. He made progress both behaviorally and academically
He is learning and socializing. (T.133-134)
is mother. She testified that and attended
for the 2016-2017 school year. He also attended in the prior school year. In the 2014-2015 school year, attended a public school in a class. The class was too big and was not supporting his needs. His teacher suggested looking for a smaller class for him. . explained that she obtained a evaluation for in the summer of 2015 and submitted it to the DOE. . never received a response from the DOE or a proposed new program. That was the reason that ended up attending for the 2015-2016 school year. believed that it was an appropriate program for for that year since his needs were targeted and he had . (T. 146-150; Exhibit T)
stated that she had attended the CSE meeting on March 11, 2016, which was held at . In addition to , , classroom teacher, also participated in the meeting. At the meeting, stated that The CSE did not put into IEP and she was told that she would have to speak with the classroom teacher of the class in which he would be placed to find out what methods would be used. explained that a class was too large. In the 2014-2015 school year, he had been in a class; however, there were only students. Even a class of students was too big . The CSE told that an case was the appropriate class size for and that a smaller class would be too restrictive. (T. 150-154)
stated that did well at in the 2016-2017 school year.
explained that every time has
, a worksheet is sent indicating things that can be done at , along with the number for any questions. emails and texts with teachers and and has phone conferences when needed. has implemented the strategies given to her at . believes that was appropriate for for Case No. 163808 he 2016-2017 school year. He was able to “excel in all aspects
(T. 160-174)
testified that the DOE had not responded to her attorney’s letter dated June 17, 2016, or to her letter dated June 21, 2016. (Exhibits C and H) confirmed that she owes to for the 2016-2017 school year. (Exhibit JJ)
confirmed that, as indicated in her 2015 1040A tax return, her income was a little over in 2015. (Exhibit V) There were no material changes in her income in 2016.
has the sole financial
responsibility for all expenses for and her other child. She stated that she absolutely cannot afford the tuition for . She explained that she had requested an impartial hearing seeking tuition for the 2015-2016 school year and, as a result of a settlement, the DOE paid the tuition for that year. If she does not prevail in this hearing, she will have to set up a payment plan with the school. (T. 154-160; 174)
FINDINGS OF FACT AND CONCL SIONS OF LAW
The central purpose of the Individuals with Disabilities Education Act (IDEA)
(20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v.
Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-
01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.
Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 (id.). "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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
The DOE maintains that it offered a FAPE to for the 2016-2017 school year.
In support of its position, it presented the testimony of , who served as a member of the CSE that created the IEP, and , who works at the school offered to testimony could likely have been provided by anyone having reviewed the IEP, since it appeared that she did not have any independent recollection of the CSE meeting held on March 11, 2016. She confirmed that most of the information relied upon by the CSE was provided by the Parent and . The recommendation for an class in a program, with students of varying disabilities, was made despite the consistently expressed need, across the board from those who know and have worked with , that he requires a small classroom setting and to be taught with methods, such as , designed specifically for children in the . testified that her school’s program could have implemented IEP. While that may be the case, it is irrelevant if it is determined that the IEP did not serve to offer aFAPE to The CSE had sufficient and convincing information regarding needs when it convened on March 11, 2016. In addition to the information and opinions directly provided to the CSE by those who worked with , there were references to , contained in the reports and other documents in evidence, that supported the Parent’s position that the recommended program would not be appropriate for The following are some of those references:
Student Observation conducted by the DOE on March 8, 2016:
“The teacher had to redirect him constantly to complete his work.”
(Exhibit N)
Progress Report dated October 30, 2015:
t t i
t
(Exhibit O)
Evaluation submitted to the DOE by the Parent on August
6, 2015:
(Exhibit T)
Academic Annual Review dated February 29, 2016:
(Exhibit X)
The observations made by the DOE, as noted in the Student Observation, were in a classroom at with . It is highly likely that would not be successful. All of the comments and recommendations above were available to, and presumably reviewed by, the CSE. However, they were either disregarded orsimply not considered.
Based on the record, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.
The Parent has the burden of establishing the appropriateness of the program she has provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, she must demonstrate that the services provided offer an educational program which meets the student’s special education needs. [Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Case No. 163808
Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.
3d 105 (2d Cir. 2007)] The standard used to measure the appropriateness of the Parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000)
“The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The 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. 7 [1993])
The DOE has not presented any challenge to the appropriateness of the Parent's placement. No testimony or other evidence has been offered to dispute the shared recommendation of the professionals who have worked with Even the DOE’s post-hearing brief does not present any argument against the appropriateness of the program.
I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with , and who provide direct services to him, have determined and agree that he needs a program far more supportive, individualized and geared towards students than the CSE’s recommended program. The references cited above, from some of the reports in evidence, clearly support the appropriateness of for for the 2016-2017 school year. In addition, and Ms. P. provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The documentation submitted establishes needs and the suitability and appropriateness of the program to meet those needs. The program was reasonably calculated to allow to make meaningful progress and to address individual needs. In fact, made meaningful progress through his participation in the program.
The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.
Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. There was no testimony presented, and no argument included in the DOE’s post-hearing brief, in this regard. The record clearly demonstrates the Parent’s cooperation with the DOE, which included providing the CSE with a evaluation. In addition, her correspondence to the DOE, which went unanswered, also showed her continued willingness to cooperate and to consider any further recommendations. The DOE did not present any argument regarding equitable considerations that should serve to reduce or bar an award of tuition reimbursement in favor of the Parent. There was no “Prong III” argument asserted by the DOE.
ORDER
1. The DOE failed to offer a FAPE to for the 2016-2017 schoo year.
2. The Parent’s unilateral placement of in the program was appropriate for the 2016-2017 school year.
3. There are no equitable considerations which would reduce or bar an award of reimbursement.
4. The DOE shall directly fund the full cost of tuition to the for attendance for the 2016-2017 school year, in the amount of . Payment shall be made immediately, since the Parent has already submitted proof of the balance due. (See Exhibit JJ)
Dated: February 1, 2018
AMY LYNNE ITZLA, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOC MENTATION ENTERED INTO THE RECORD
Parent Exhibits
Exhibit Date Description Pages
A 10/14/16 Impartial Hearing Request with 19
with proof of submission
B 11/2/16 DOE Response 4
C 6/17/16 Email with attachment 6
D 8/23/16 Email 2
E 8/22/16 Email 2
F 7/12/16 Letter from 1
No Exhibit G
H 6/21/16 Parent fax with proof of transmission 8
I 10/18/16 Email from DOE 2
J 10/19/16 Email from DOE 3
K 11/2/16 Email from DOE 2
L 11/14/16 Email from DOE 2
M 11/14/16 Email from DOE 1
N 3/8/16 DOE student observation 2
O 10/30/15 Progress note 2
P 10/29/15 Progress report 1
Q 11/2/15 report 2
R 10/27/15 report 2
S 11/5/15 report 1
T 8/6/15 Parent letter to DOE with attachment and 12 proof of transmission
U undated informational brochure 2
V 2015 Form 1040A 2
W 3/11/16 minutes of CSE meeting 6
X 2/29/16 academic annual review 5
Y 3/1/16 annual 2
review
Z 2/28/16 annual review 3
AA 2/26/16 annual review 3
BB 2/28/16 annual review 2
CC 3/1/16 7
DD 3/1/16 1
EE 3/1/16 DOE 5
FF 2015-2016 Progress report 19
GG 2015-2016 Report card 2
HH January 2016 Progress report 9
II 2016-2017 Parental Guarantees 5
JJ 1/17/17 Affidavit regarding amounts owed and paid 1
KK 2016-2017 Weekly schedule 1
LL August 2016 Attendance report 1
MM 9/7/16-1/13/17 Attendance report 3
NN 5/9/17 2016-2017 Third quarter report card 7
OO August 2016 Progress report 19
PP 10/17/16 web page printout 55