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FINDINGS OF FACT AND DECISION
Case Number: 165284
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 19, 2017
Actual Record Closed Date: April 19, 2017
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 19, 2017
Parents
Student
District Representative — DOE
District Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
Parent requested a hearing on January 24, 2017. She amended her request on March 2, 2017. Parent is pro se. The district is represented by and . The compliance date was not extended by either party. An impartial hearing officer is regardless of the parties' positions, to ensure compliance with the 45-day timeline for issuing a decision (see Application of the Dep't of Educ., Appeal No. 11-095;
Application of the Dep't of Educ.).
BACKGROUND
The student is a , classified as and currently attending a at in
. (T. 114)
In the IEP dated February 17, 2017 the District recommended an
; ,
;
. The IEP indicates the student has a and . (Exh. 20)
The parent challenges the recommendation and requests reimbursement for independent evaluation for ; reimbursement for a lawyer for ; and tuition reimbursement for private school. (Exh. 2)
TESTIMONY and EVIDENCE
The parent submits two receipts from Dr. for each and one cancelled check from the parent to Dr. on March 8, 2017 for . (Exh. B)
The parent testified that a second cancelled check has not as yet posted to her account.
(T. 125)
, testified. She observed the student and did a . (T. 83) Dr. ’s was not available at the time of the IEP meeting. (Exh. A) Ms. testified that she has observed . (T. 85) Ms. stated that the results were that
(T. 86) The student needs , such as . His , , will ,
.
. The student’s will and
, v (T.
87) . Additionally, the teacher can
.
(T. 89) Ms. wants the teachers to , such as .
Additionally, work with his to . (T. 88)
Ms. agrees with the recommendation on the IEP dated February 2017.
(T. 89 – 92)
, the student’s teacher testified that the student is
. (T. 109) . (T.
110) .
(T. 114) Ms. testified that she would not recommend an
. (T. 115)
Dr. did not respond to the district’s subpoena, although she received it. (Exh. 24) At the hearing Dr. was called and no message was left because the answering machine would not accept it.
Dr. completed a on March 29, 2017. She
finds
. (Exh. A) She recommends
. (Exh. A)
DISCUSSION
The IDEA (20 U.S.C. §§ 1431-1444; 34 C.F.R. § 303.340) states that beginning at the age of 3 and generally continuing until the age of 21, a school district must provide a free appropriate public education (FAPE) based on their educational needs which includes special education and related services, provided in accordance with an IEP (20 U.S.C. §
1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347).
ATTORNEY FEE OF
No evidence or testimony was submitted to support a request for attorney fees. It is beyond the scope of my jurisdiction to award attorney fees. Parent’s request is denied.
REIMBURSEMENT FOR COST
The district submitted emails regarding reimbursement for a (Exh. 5 – 9, 13, 21, 7 – 1). A resolution agreement dated February 17, 2017 indicates reimbursement for an . (Exh. 3 – 2, 4)
Another resolution agreement dated July 13, 2016 refers to a . (Exh. 7) Dr. recommends the student have a . (Exh. A – 11) On September 29, 2016 the parent was sent documents on how obtain a independent evaluation for a “without cost to you.”
(Exh. 10) No has been administered to the student. Dr.
administered a (Exh. A) Parent sought a instead of a .
The parent has a right to obtain an independent educational evaluation [(IEE)] at public expense" (8 NYCRR 200.5[g][1]; see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502[b]; see also K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan.
13, 2012] [noting that "a prerequisite for an IEE [at public expense] is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363
F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated the parent's claim for an IEE at public expense]).
No evidence or testimony was provided that the parent disagreed with the district’s . The parent’s request is for reimbursement is denied.
TUITION REIMBURSEMENT
The standards for determining whether a private school placement is "appropriate" under the IDEA are similar to the standards for assessing the adequacy and appropriateness of a proposed public placement. As the Second Circuit has explained,
"[s]ubject 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." A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165,
[S.D.N.Y. Mar. 18, 2010]).
The parent submitted a one page document titled “ .” The page states that “ ” There is no indication that the program accepts this particular student with his particular needs. No other documentation or testimony was provided. The parent’s request for reimbursement is denied.
The parent through their complaint impliedly disagreed with the district’s IEP recommendation for September 2017. The IEP indicates that . (Exh. 20 – 12) The student’s teacher testified the student is . (T. 109) Additionally the student’s teacher stated she does not believe the student would be appropriately placed in an . (T. 115) Based on the documents submitted, it is necessary for the student to have a . As of this date, none has been completed.
IT IS HEREBY ORDERED:
The parent’s requests are denied.
The parent will sign all necessary permissions and documents for the student to have a completed by May 31, 2017.
The district will reconvene an IEP meeting prior to June 20, 2017.
Dated: April 25, 2017
MARY NOE, ESQ.
Impartial Hearing Officer MN:
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 , 3/8 and 3/29/17, 11 pages
B Receipts and Cancelled Checks, 4/7/17, 3/8/17, 3 pages
C Emails between Parent and DOE, 2010 - 2014, 15 pages
D W-9 form, 4 pages
E , 2 pages
DEPARTMENT OF EDUCATION
1 Due process Complaint, 1/24/17, 5 pages
2 Amended Due Process Complaint, 3/2/17, 2 pages
3 Unsigned DOE Resolution Agreement, various dates, 5 pages
4 Withdrawn
5 Emails between Parent and DOE, various dates, 28 pages
6 Due Process Complaint 160228, 4/13/16, 5 pages
7 Resolution Agreement 160226, 7/13/16, 2 pages
8 RSA for per Resolution Agreement, 8/19/16, 4pages
9 , 5/17/16, 2 pages
10 , 9/29/16, 7 pages
11 DOE Email of Initiation of Reevaluation, 9/13/16, 1 page
12 Consent for Assessments, 9/30/16, 2 pages
13 , 11/2/16, 1 page
14 , 2/17/17, 6 pages
15 , 2/10/17, 5 pages
16 , 2/16/17, 3 pages
17 Due Process Complaint 157823, 9/16/15, 5 pages
18 Resolution Agreement 157823, 10/13/15, 2 pages
19 per Resolution Agreement, 10/26/15,
2 pages
20 IEP, 2/17/17, 15 pages
21 IEP, 12/29/15, 13 pages
22 , 12/2/15, 5 pages
24 Subpoena Receipt to , 4/13/17, 1 page