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FINDINGS OF FACT AND DECISION
Case Number: 164000
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 7, 2017
Actual Record Closed Date: April 18, 2017
Hearing Officer: Suzanne M. Carter, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2017
Attorney — Student
(Via Telephone) — Student
(Via Telephone) — Student
(Via Telephone) — Student
Father — Student
Mother — Student
District Representative — DOE
INTRODUCTION
On October 25, 2016, I was designated as impartial hearing officer for this matter pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§1415(f), in the matter of (the “Student”). On November 17, 2016, a prehearing was held on December 2, 2016. Impartial hearing was held on February 7, 2017 where Parent’s exhibits A-R and District’s exhibits 1-8 were entered into evidence.
The record was closed on April 18, 2017.
BACKGROUND
is an whose classification is .
Ex. 1. The Parent alleges the Student was denied a free and appropriate public education (FAPE) because inter alia the CSE team did not hold a second meeting following receipt of evaluations and did not send a school location to the Parent. T79. The Parent sent a 10- day notice letter. Ex. 8. The Parent is seeking tuition reimbursement/direct payment for the or, in the alternative, funding by a Nickerson letter.[1]
District’s Case
The District did not put on a case. T15.
Parent’s Case
, , and , personnel testified
regarding the Student’s progress at the school. , mother, testified about the Student’s academic history.
FINDINGS OF FACT
A. The DOE Conceded that it Did Not Provide the Student with a FAPE
A school district may not argue that the “equities” are in its favor it once it has failed to provide a FAPE or concedes that it is has not. See N.R. v. Departm ent of Education of the City of New Y ork, 2009 U.S. Dist. LEXIS 27273, * 20-21 (S.D.N.Y.
2009). The Court held that the Department’s “‘abdication of its responsibility to provide.
. . FAPE is so clear from the record -- and the law’s imposition of this duty on the [Department] is so well-settled -- that . . . the equities favor the parents.’” Id. Therefore, the Department’s concession of a FAPE pushes the equities heavily toward the Parent.
B. The is an Appropriate Placement
Under New York law, the burden of proof falls upon the parents to show that their unilateral placement at a private school was appropriate. See Schaffer ex rel. Schaffer v.
W east, 546 U.S. 49, 58 (2005) (concluding that “the burden of persuasion lies where it usually falls, upon the party seeking relief”); Educ. Law § 4404(1)(c) (placing the burdens of production and persuasion as to the appropriateness of a unilateral placement on the parents). Therefore, New York parents who believe that the state has failed to offer a FAPE act “at their own financial risk” when they choose to enroll their child in a private school. A .C. & M.C. ex rel. M .C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009)
(citation omitted).
The standards for determining whether a private school placement is “appropriate” under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement. The Second Circuit has explained that “subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo v.
A rlington Central Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007) (citation omitted). “The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits.” Id. (citation omitted). “A private placement meeting this standard is one that is likely to produce progress, not regression.”
Id. (citation omitted). “Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education,” and “[a]n appropriate private placement need not meet state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006)
(citation omitted). Moreover, “a private placement need not provide certified special education teachers or an IEP for the disabled student,” and “parents may not be subject to the same mainstreaming requirements as a school board.” Id. (citation omitted). “[T]he test for the parents’ private placement is that it is appropriate, and not that it is perfect.”
Id. (citation omitted). Ultimately, the standard to be applied is to determine whether “[the]
unilateral private placement . . . provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (citation omitted).
Ms. testified the Student is in a , has , and receives . T21. He has issues with “ .” T22. He has made . T25-26. Ms. , the , testified that has deficits in . T34-40. He needs
“ ” T41. Ms.
the described her work with who is making
progress. T 51-61. . T61.
When considering these factors, the preponderance of the evidence in the record supports a finding that the is reasonably calculated to enable the Student to receive meaningful educational benefits for the 2016/17 school year, rendering it an appropriate placement.
C. The Equitable Considerations Favor an Award of Funding for the 2016/17 School Year
Even if the plaintiffs succeed in showing that their private placement was appropriate, however, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” Forest Grove School District v. T. A ., 557 U.S. 230, 246 (2009). “[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Florence County Sch. Dist. Four v. Carter, 510
U.S. 7, 16 (1993).
The Parent is entitled to complete funding for 2016/17 school year at because no factor warrants reduction. Funding shall be authorized through a “Nickerson letter” because the Student was never offered a school location by August 15 for the 2016/17 school year. T78. The CSE also never responded to the Parent’s request for a second meeting after she forwarded evaluations. T79; Ex. P, R.
IT IS THEREFORE ORDERED THAT
1. The DOE shall issue a Nickerson letter to fund the Student’s placement for the 2016/17 school year at the .
Dated: April 24, 2017
SUZANNE M. CARTER, ESQ.
Impartial Hearing Officer SC:
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
Exhibits entered into record on February 7, 2017
NO. NAME OF DOCUMENT DATE # PAGES
A Impartial Hearing Request 10/24/2016 7
B Corrected Impartial Hearing Request 12/5/2016 8
C IEP 4/18/2016 16
D 2016 Comprehensive Educational Plan 2016-2017 33
E Final Report Card 2014-2015 2014-2015 2
F Final Report Card 2015-2016 2015-2016 2
G DOE Standard Operating Procedures Manual: Feb. 2009 4 The Referral, Evaluation, and Placement of
School-Age Students w ith Disabilities
(selections)
H Parent Correspondence to CSE 4/25/2016 2
I Contract 9/2/2016 1
J Proofs of Payment Various 4
K Schedule Undated 1
L Taxes 2015 4
M Teacher Report 4/6/2016 1
N Progress Reports 2016-2017 11
O Various 2
P Report 8/2/2016 6
Q 5/24/2016 11
R 7/12/2016 6
Department of Education
Exhibits entered into record on February 7, 2017
Exhibit Description Date #
No. Pages
1. IEP 04/18/2016 15
2. Notice of IEP meeting 4/6/2016 3
3. Prior Written Notice 5/2/2016 4
4. 4/6/16 6
5. 4/8/16 2
6. 4/6/16 1
7. 4/15/16 1
8. Ten day notice letter 8/25/16 1
Footnotes
[1] A "Nickerson letter" is a letter from the New York Department of Education authorizing a parent to place a student in a New York State approved nonpublic school at no cost to the parent (see Jose P. v. A mbach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). It is intended to address the situation in which a student has not been evaluated or placed in a timely manner (see A pplication of the Dep't of Educ., Appeal No. 09-114).