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FINDINGS OF FACT AND DECISION
Case Number: 164583
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 8, 2017
May 24, 2017
Actual Record Closed Date: June 23, 2017
Hearing Officer: Linda Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2017
Attorney — Parents
Chairperson Designee, — District
CSE — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2017
Mother
Attorney — Parents
Parents
Parents
Chairperson Designee, — District
CSE — District
District Representative — District
On November 22, 2016, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of ("hereinafter the Student"). The hearing was convened at the request of the parents, through their attorney, which was received on November 22, 2016. Hearing dates were held on March 8, 2017 and May 24, 2017. The parties moved to extend the compliance date during the course of the hearing.
In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance date were granted(Tr. 6,7,111-113,123; Exhs. 1-V I). The current record close date is June 23, 2017 and the decision due date is July 6, 2017. Appended to the record are lists of persons in attendance and of documents submitted into evidence.
The hearing was requested by the parent to demand that the Department of Education ("DOE") reimburse the parent for the cost incurred by the parent for at because the DOE failed to implement the Student’s
(" ") thereby causing a deprivation of free
appropriate public education ("FAPE") for the 2016-2017 school year and withdrew their request for an order compelling the DOE to secure an appropriate provider at an enhanced rate (Exh. 1 at 2) as the 2016-2017 year concluded (Tr. at 44), and only sought reimbursement for the private the parent obtained at (Tr. at 47). The parent provided proof of payment from September 2016 through April 2017 (Exh. O) and as a post hearing exhibit (Exh. VII at 14) proof of payment for May 2016 and June 2017 totaling the amount she paid of .
The DOE representative acknowledged that the Student did not receive a FAPE for the 2016-2017 school year and thus was entitled to services at an enhanced rate (Tr. at 38;42). The only dispute was the qualifications of the services, , the parent hired (Tr. at 22, 25). The DOE representative stated that the only issue was whether the services at were special education services(Tr. at
26;56;Exhs. C,D,G). The DOE representative maintained that the DOE should not have to fund not provided by a (Tr. at 40).
BACKGROUND
The Student is a classified with a and the classification is not disputed. During the 2016-2017 year, the Student is currently attending , the in (Tr. at 34; 74).
The CSE developed an IEP on May 23, 2011 and classified the Student with and recommended for a placement with and related services of (Exh. 3 at 5) and recommended (Exh. 3 at 6). The IEP further indicated that
(Exh. 3 at 8).. The IEP further indicated that the Student
(Exh. 3 at 2).
THE PARENTS' CASE
The at , the , testified that she was aware
that the Student was mandated to receive for the 2016-2017 school year and described her efforts to obtain a provider (Tr. at 63). She stated that she interviewed 25-30 providers who accepted P-4 vouchers from the agency who contracted with the DOE and that no provider was obtained (Tr. at 65). She opined that the parent cooperated in the search and noted that while the Student had made progress, (Tr. at 66;72). She recalled that the DOE provided to herself and the parent a P-4 form in September, 2016 and both she and the parent regularly checked over the list to find a provider with no success (Tr. at
69;71).
The parent testified that her daughter had and received a last year (Tr. at 79), and noted that her daughter did not have (Tr. 80). She recalled that she attended the IEP meeting on May 30, 2016, and that her daughter was supposed to receive starting September 2016, she recalled that she had many discussions with the at and that her daughter needed the due to her , she recollected that and so she had her daughter assessed at (Tr. at 81). She stressed that the assessment revealed that her daughter scored and she was about to enter (Tr. at 82). She stated that based on the results of the assessment she enrolled her daughter at on September 12, 2016 (Exh. E) for as a temporary solution until commenced (Tr. at 85). She stated that she reached out to the DOE staff by email and letter (Exhs. F-H,M) for help to obtain a provider and that by November 2016, after the first marking period, (Exh. J) and (Tr. at 90). She explained that she enrolled her daughter to receive to mimic the IEP as much as possible (Tr. at 91). She opined that and that she had made progress in (Tr. at 96). She stated that at first her daughter received and then she arranged for (Tr. at 98). She further opined that her daughter received (Tr. at 98). She explained the number of hours in the month of September 2016 was for a rate and the cost was (Tr. at 102), and then in January 2017, she paid the rate of per month(Tr. at 103). She noted that the fee was from month to month and so if a provider was obtained she would only have to pay for the balance of that month (Tr. at 106).
The of , employed for 4.5 years at , stated that there were 40 staff members for 5 centers and about 20 staff members for the center that the Student attends (Tr. at 123). She stated that the instructors were qualified in and received a rigorous training process including materials, techniques and strategies to teach (Tr. at 126), and that she had personal experience with improving the of other children with the same deficits as the Student (Tr. at 127).
The Provider Affidavit submitted by the parent indicated that several of the instructors were certified in and the Student's records indicated that percent of the private sessions were with an
(Exh. P at 2)
FINDING OF FACT, CONCLUSION OF LAW
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the Student to make progress in his education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d
,Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s 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. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].
District's representative conceded prong one of the Burlington test. I find that the DOE representative conceded the Student did not receive FAPE for the 2016-2017 school year (Tr. at 42).
The parent has the burden to prove that the services she obtained for the Student are appropriate to his needs. The fact that the facility selected by the parent to provide the educational services to the child is not approved as a school for children with disabilities is not dispositive of the parents’ claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The parent must prove that the Student will receive an appropriate educational benefit from the program and the parent offered evidence to meet this burden. The evidence presented demonstrated that the at was appropriate to meet the Student’s educational needs. I find that provided the Student with and and the received instruction in the methodology. I find that the evidence demonstrated that the at was appropriate to meet her needs as had achieved success in improving the of students. I find the evidence establishes progress in (Exh. N).
Therefore, I find that the Student is entitled to the from and the parent is entitled to reimbursement for the academic year 2016-2017. I find that the parents need not show that their placement is perfect, rather they must only show that it is appropriate and is reasonably calculated to enable their child to receive educational benefits. (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d at 84). I credit the testimony of the parent and find that her daughter improved in . I find that met the unique needs of the Student. I find testimony adduced at the hearing established that had success in providing the (Tr. at 127).
The parent's attorney asserted that the "
" (Exh. VII at 9). I agree and find the Student progressed in her .
The District's representative argued that reimbursement was only appropriate if the parent's provider was a (Exh. VIII at 2). She asserted that the at were not all certified in and the parent's "
" (Exh. VIII at 2).
Parent's counsel argued that a "
" (Exh. VII at 8). Counsel asserted that the "
" (Exh. VII at 9). I agree and find that the placement may not be held to certain requirements that Districts are held such as teacher licenses or LRE under Frank G. and Gagliardo and the unilateral placement is a not perfect placement.
M.S.. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000).
Counsel further argued that the student
. (Ex. N).
assessment at the beginning of the school year. (Ex. C)" (Id.) I agree and find that is appropriate and is reasonably calculated to enable their child to receive educational benefits
The third prong of the test for tuition reimbursement is whether the equities favor the parent's position. I find the parent fully cooperated with the DOE. The parent's attorney argued that the parent "
" (Exh. VII at 10). I agree and find the equitable considerations do support the parent's claim for reimbursement.
Parent's counsel argued that "the Second Circuit, have extended the Supreme Court's rationale in Burlington to support the award of compensatory education as “appropriate relief” under the IDEA to remedy a child’s denial of FAPE. See P. ex rel.
Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award to 8 year old student for the school’s violation of the LRE mandate); see Pihl v. Mass. Dep’t of Educ., 9 F.3d 184, 188-90 (1st Cir.1993)" (Exh. VII at 10). I agree and find that the parent is entitled to an award of reimbursement for
.
ORDER
Therefore, it is hereby ordered that the DOE provide reimbursement for the 2016-2017 school year upon proof of attendance and proof of payment (the evidence of such payment must be acceptable to the DOE) in the amount of for expense.
Dated: June 28, 2017
LINDA AGOSTON, ESQ.
Impartial Hearing Officer LA:
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 ON MARCH 8, 2017
I Decision on extension, 2/6/17, 1 p. IHO
II Decision on extension, 3/8/17, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 24, 201
A Omitted
B Omitted
C Email between Parent and , 8/24/16, 2 pp. Parent
D Program Description, undated, 1 p. Parent
E Enrollment Contract, 9/15/16, 1 p. Parent
F Email between Parent and CSE, 10/19/16, 1 p. Parent
G Emails between Parent and , 10/19/16, 1 p. Parent
H Parent’s Email to provider, 11/7/16 1 p. Parent
I Enrollment Contract, 1/23/17, 1 p. Parent
J Report Card, 3/17, 5 pp. Parent
K Letter, 3/8/17, 1 p. Parent
L Attendance Record, 9/16-5/17, 2 pp. Parent
M String of Emails between DOE and ,
(omitted M at 1), multiple dates, 3 pp. Parent
N , 5/18/17, 2 pp. Parent
O Parent’s Proof of Payment, various dates,[5] pp. Parent
P Provider’s Affidavit, undated, 2 pp. Parent
1 Due Process Complaint, 11/22/16, 4 pp. District
2 Due Process Response12/2/16, 3 pp. District
3 IEP, 5/23/16, 10 pp. District
4 Prior written notice, 5/24/16, 4 pp. District
Footnotes
[5] P4 form for , 9/20/16, 2 pp. District III Decision on extension, 3/28/17, 1 p. IHO IV Decision on extension, 4/27/17, 1 p. IHO V Subpoena, 5/5/17, 1 p. IHO VI Decision on extension, 5/24/17, 1 p. IHO POST HEARING SUBMISSION VII Parent’s Closing Statement and Proof of IHO Payment, 6/23/17, 14 pp. VIII District’s Closing Statement, 6/23/17, 3 pp. IHO