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FINDINGS OF FACT AND DECISION
Case Number: 165152
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 27, 2017
June 27, 2017
July 27, 2017
August 22, 2017
Actual Record Closed Date: September 15, 2017
Hearing Officer: Linda Agoston, Esq. Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 27, 2017
Mother
Attorney — Parents
District Representative — District
District
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2017
Attorney — Parents
District Representative — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2017
Attorney — Parents
District Representative — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2017
Mother
Attorney — Parents
via — Parents
telephone
District Representative — District
On January 12, 2017, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(f)(1) in the matter of (hereinafter " "). The Parent filed the initial request for an impartial hearing on January 12, 2017. Hearings were held on April 27, 2017, June 27, 2017, July 27, 2017 and August 22, 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 request for extensions of the compliance date was (trans. 395; Exhs. 1-V). The current record close date is September 15, 2017 and the decision due date is September 29, 2017. Appended to the record are lists of persons in attendance and of documents submitted into evidence.
This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations ("NYCRR"). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district's Committee on Special Education
("CSE"). The hearing was initiated by the Parent who challenged the 2014-2015, 2015- 2016 and 2016-2017 school years.
The hearing was requested by the Parent to demand that the Department of Education ("DOE") to obtain funding for the cost incurred by the Parent for services at the (" ") and pay for the costs for compensatory services at as the only outstanding issue from the complaint (Tr. at 45). The Parent seeks an Order that the DOE pay for the following: (1)
; (2) ; (3)
at per hour and (4) funding in the form of a (Exh. A at 11).
BACKGROUND
was born in and currently resides in where
he attended grade, (Exh. AA
1). had a and attended
numerous schools (Exh. 2 at 1). The Prior Written Notice ("PWN") dated Ma
2015, indicated th and noted
and , and the
PWN dated D mber 5, 2017, indi t was placed in an vices of (Exhs. 5 at 2;6 at 1).
, evaluation on February 10, 2017 and Ma 17, 2
. D essed
E en d
" (Exh.
AA at 22).
On March 10, and 15, 2017, a Evaluation was conducted and the evaluator noted that received scores within that indicated (Exh. 2 at 2). The evaluator assessed and found that , as measured by the , which placed him in the . The evaluator noted that and
(Exh. 2 at 4).
On March 15, 2017, Dr. 's report from 's classroom teacher indicated that and that was " " (Exh. BB at 1), and that
" " and
" " (Exh.
BB at 2).
On June 27, 2017, the CSE met classified as and recommended that be placed in New York State approved non-public school (Exh. 7 at 11), with related services of and
; ;
(Exh. 7 at 9) and the IEP indicated that had and (Exh. 7 at 12).
THE DOE'S CASE
The DOE representative did not dispute the Parent's allegations about the 's lack of FAPE for the 2014-2015, 2015-2016 and 2016-2017 school years and did not dispute the Parent's allegations about the lack of progress, but only disputed that compensatory by should be awarded and requested that the request for compensatory related services be dismissed (Exh. VIII at 2).
THE PARENT'S CASE
The Parent's case was presented by the testimony of the Parent and Ms.
.
The Parent testified that she was an advocate for her son since the age of and that she pushed the DOE for and that his teacher told her that and that she was surprised to find out at the CES meeting that her son was regressing (Tr. at 141). She expressed her concern that (Id.). She stated that (Tr. at 142). She explained that she choose for testing in December 2016 and that she was aware that the DOE offered hours of at the rate of per hour (Tr. at 143).
Ms. , of , explained that is qualified to help and that would receive based on the results of the assessments
(Exh. N) and that a (Exh. M) was developed based on the assessment (Tr.
at 68). She stated that the was administered for and that were assessed (Tr. at 71). She noted that (Tr. at 71; 101). She stressed that was an issue as was assessed by the and (Exhs. at N at 20-21; L at 2; Tr. at 101). She stated that was assessed and that (Tr. at 125; Exh. N at 24). She stated that were assessed and that she recommended (Tr. at 94; Exh. M). She noted that was recommended to address (Tr.
at 95), and that were recommended to (Tr. at 99), and that were recommended for (Tr. at
97), and that were recommended and that were recommended and that were recommended (Tr. at 99; Exh. M). She explained that provides (Tr. at 99-101).
Ms. noted that Dr. assessment matched her assessment and that was evaluated at in December 2016 (Exh. N) and that he scored in the (Exh. L at 2), and that provides based on and a (Exh. M) was developed to assuming he received at least
, but if were able to receive , he would cover the material more quickly (Tr. at 102). She stated that the staff includes (Tr. at 110). She testified that the curriculum followed the (Tr. at 125). Ms. reviewed in detail the results of the administered to in December 2016 and stated that and on the (Tr. at 66). Ms. opined that needed and that could address and that she had personal knowledge that had worked with children with a profile like and that (Tr. at 107).
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/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[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. § 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]).
The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy” or “guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).
In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)."
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].
The Parent's attorney claimed that the 2014-2015 IEP and the 2015-2016 IEP and the 2016-2017 IEPs were defective as the was not appropriate as had not progressed academically, socially or emotionally (Exh. A at 6 to 11)
The DOE representative did not dispute the Parent's allegations about the 's lack of FAPE for the 2014-2015, 2015-2016 and 2016-2017 school years and did not dispute the Parent's allegations about the lack of progress.
The Parent's attorney asserted that compensatory "education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979
F. Supp. 147 (N.D.N.Y. 1997)" (Exh. VII at 9). I find that equitable powers extend to prospective payments for educational instruction where parents cannot afford the financial outlay required by reimbursement cases. Mr. and Mrs. A. ex rel. D.A. v. NYC Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011). I find that was entitled to compensatory services. and that and the Parent was unable to pay for at . I find compensatory education is available as an appropriate remedy under the Individuals with Disabilities Education Act (“IDEA”). P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F. 3d 111 (2nd Cir. 2008). Compensatory education, as with other forms of available remedies, serves the purpose of ensuring that the student is appropriately educated within the meaning of the IDEA. Newington, 546 F.3d at 123, quoting Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Reid v.
District of Columbia, 401 F.3d 516, 518 (D.C.Cir. 2005) as cited in Newington, 546 F.3d
. I credit the testimony of Ms. regarding
.
The DOE representative stated in her post hearing brief that was not appropriate as and the hours recommended were conjecture by Ms. (Exh.
VIII at 2) The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. (Frank G., v. Bd of Educ. Of Hyde Park, 459
F. 3d 356, 365 [2d Cir. 2006]). The courts have held that, in determining the appropriateness of a private placement, the Parent is not required to show that the placement is perfect (Warrant v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3rd Cir.
1999]). After reviewing the testimony and evidence in this case, I find that the Parent has met her burden of proof with respect to the services to be provided by . I credit Ms. ’s testimony that will receive based on the results of the assessments (Exh. N) and that a (Exh. B) is developed based on the assessment. I find that required
I also find persuasive Ms. 's unrebutted opinion that needs and that his needs could be addressed at . I find the record supports a finding that provided an appropriate program for as I credit the testimony from Ms. that could receive from a (Tr. at 110). I also credit Ms. ’s testimony that had successfully taught students with profiles similar to 's profile. The DOE representative argued Ms. determined the number of hours subjectively rather than aligned to the publisher guidelines (Exh. VIII at 2). I find that hours were reasonable in light of the number of years that FAPE was denied. I find that the DOE presented no witnesses or evidence to demonstrate was not appropriate. I find the equities favor the Parent. Prospective funding is an appropriate remedy under IDEA. "Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately." (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)). I find the Parent is entitled to prospective funding.
ORDER
Therefore, it is hereby ordered that the DOE provide the following that:
(1) the DOE shall pay
at a rate not to exceed per hour;
(2) the services shall be provided by and these services shall be completed by the end of the 2019-2020 school year;
(3) the DOE shall directly pay in the amount of
(4) the DOE shall directly pay in the amount of
(5) the DOE shall provide
.
Dated: September 26, 2017
Corrected Date: September 27, 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 APRIL 27, 2017
1 Due Process Complaint, 1/19/17, 3 pp. District
2 Evaluation, 3/10/17, 5 pp. District
3 Consent for New Testing, 1/5/17, 1 p. District
4 Attendance, 12/12/16 1 p. District
5 Prior Written Notice, 5/7/15, 5 pp. District
6 Prior Written Notice, 12/18/15, 4 pp. District
A Demand for Due Process, 1/12/17, 12 pp. Parent
B Omitted on 8/22/17
C Omitted on 8/22/17
D Omitted on 8/22/17
E Omitted on 8/22/17
F Omitted on 8/22/17
G Omitted on 8/22/17
H Omitted on 8/22/17
I Omitted on 8/22/17
J Omitted on 8/22/17
K Omitted on 8/22/17
L , 12/2/16, 3 pp. Parent
M , 12/2/16, 1 p. Parent
N , 12/2/16, 66 pp. Parent
O Omitted on 8/22/17
P Omitted on 8/22/17
Q Omitted on 8/22/17
R Omitted on 8/22/17
S Omitted on 8/22/17
T Omitted on 8/22/17
U Omitted on 8/22/17
V Omitted on 8/22/17
W Omitted on 8/22/17
X Omitted on 8/22/17
Y Omitted on 8/22/17
Z Omitted on 8/22/17
I Decision on Extension, 2/16/17, 1p. IHO
II Decision on Extension, 4/27/17, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 27 2017
IV Decision on Extension, 6/27/17, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 27 2017
V Decision on Extension, 7/27/17, 1p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 22 2017
7 IEP, 6/27/17, 14 pp. District
8 Prior Written Notice, 6/30/17, 4 pp. District
AA Evaluation, 3/17/17, 30 pp. Parent
BB Teacher Report, 3/15/17, 3 pp. Parent
II Decision on Extension, 4/27/17, 1 p. IHO
III Decision on Extension, 5/25/17, 1 p. IHO
IV Decision on Extension, 6/27/17, 1 p. IHO
V Decision on Extension, 7/27/17, 1 p. IHO
VI Decision on Extension, 8/22/17, 1 p. IHO
POST HEARING SUBMISSIONS
VII Parent's Closing Statement, 9/15/17, 12 pp. IHO
VIII District's Closing Statement, 9/15/17, 3 pp. IHO