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FINDINGS OF FACT AND DECISION
Case Number: 163860
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 17, 2017
April 7, 2017
Actual Record Closed Date: June 15, 2017
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 17, 2017
For the Student:
NONE
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 17, 2017
For the Student:
Attorney
(Via Telephone)
(Via Telephone)
(Via Telephone)
Parent
For the Department of Education:
District Representative
By Due Process Complaint dated October 17, 2016, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The parents brought this complaint, and the amended complaint, to challenge the Student’s IEP and program for the 2016-2017 school year, alleging a wide variety of FAPE violations. As a remedy, the parents requested tuition payment/reimbursement for the. (“ ”) in the amount of. The parents also seek reimbursement for the independent evaluation of, Ph.D.
Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is a who has been diagnosed with. (Exh. B) He has issues and is. He finds it difficult to, and had particular difficulty in, when he was placed at. (Exh. K) is designed to assist students with disabilities who also have. The school has an. There are sizes at the school, and the student receives to address.
The Student’s issues and issues are addressed through. He has made significant improvement in, and has been able to with the support of the. (Exhs. H, L)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
1..
“ ” is an appropriate classification if
. This classification requires
. 34 C.F.R. Sect. 300.8(c ).
The record established that the Student has problems in school as a result of. As a result, he should be classified as “ ” under the Act.
2. Tuition.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District may be required to pay for educational services obtained for a student by a student’s parent if the services offered by the District are inadequate or inappropriate (“first criterion,”) the services selected by the parents are appropriate (“second criterion”), and equitable considerations support the parents’ claim (“third criterion”), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep’t of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
The District conceded FAPE denial. The parents prevail on “prong one.”
On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The parent presented sufficient evidence of the school’s remediation program for the student, and the student’s concomitant progress in. The District argued that this was no more progress than when the Student was at, but presented no witnesses or documents in support. In fact, documents in the record are to the contrary. (See Exh. K). The parents therefore prevail on the second prong.
There no dispute that the parent has acted appropriately throughout the process, and there is no dispute on equities here. The parent is awarded direct payment and/or tuition reimbursement for for the 2016-2017 school year, including the fee.
3. Evaluation.
The parents also ask for reimbursement of the I.E.E. by Ms.. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an I.E.E. at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. Sect. 300.502(a), (b); 8 NYCRR Sect. 200.5(g)(1). If a parent requests an I.E.E. at public expense, the school district must, without unnecessary delay, ensure that either an I.E.E. is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. Sect. 300.502(b)(2)(i)-(ii); 8 NYCRR Sect. 200.5(g)(1)(iv). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense 34 C.F.R. Sect. 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007).
However, if the parent shows that the District evaluation is inappropriate, or if the District unnecessarily delays in seeking an impartial hearing to contest a parent's request for an I.E.E., the IHO may order that the District provide the requested I.E.E. at public expense. Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006) (delay in requesting an impartial hearing resulted in IHO order to fund I.E.E.).
In effect, the parent’s Due Process Request constitutes a request for an I.E.E., and the school district did not respond to the request at all. Application of a Student with a Disability, Appeal No. 05-041 (2005). This lack of response, pursuant to applicable law, entitles the parent to the requested evaluation.
The school district objected, arguing that the Due Process Complaint was not clear in this regard. However, the Due Process Complaint did request the cost of the evaluation and referenced the evaluation in its body.
Alternatively, where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:
The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.
School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).
Even if the Due Process Complaint is construed in such a way that it is not considered a request for an I.E.E., it is still appropriate to order reimbursement for the parent’s expenditures here. There is no record of any school district evaluations of this student. The parent and the school district required the information in the Evaluation to diagnose the Student and provide recommendations for his academic future.
ORDER
As a result of the foregoing, the parents are hereby reimbursed for for payments to and for payments to Dr..
Dated: June 29, 2017
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
ML:
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
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due Process Complaint, 10/17/16, six pages
B Evaluation, 5/19/16, 20 pages
C Evaluation Bill, 5/19/16, one page
D School Contract and Proofs of Payment, Unidentified date, five pages
E Schedule, 9/14/16, one page
F Report Card, 12/20/16, one page
G Affidavit, 12/9/16, four pages
H Affidavit, 12/20/16, four pages
I Parent Correspondence, unidentified date, eight pages
J Emails, 11/15, two pages
K Teacher Report, 6/28/16, three pages
L Affidavit of , 1/13/17, three pages
DEPARTMENT OF EDUCATION
1 Report Cards from , Unidentified date, Unspecified number of pages