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FINDINGS OF FACT AND DECISION
Case Number: 165310
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 23, 2017
March 8, 2017
March 22, 2017
Actual Record Closed Date: April 3, 2017
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 23, 2017
Parent, Pro Se — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2017
Pro Se (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2017
Pro Se — Student
Pro Se — Student
(Via — Student
Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
INTRODUCTION
On 01/27/2017, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).
Pre Hearing Conference was held on 02/23/2017. Hearing was scheduled to commence on03/08/2017.
A hearing was conducted and appearances made by the parties as indicated herein.
Appended to the record are lists of persons in attendance and the documents received in evidence.
This matter was instituted by the impartial hearing request dated 01/19/2017 alleging that the Department of Education (DOE) , relative to Student, is “ ”. (Ex A 1)
Student has been accepted at the which addresses Student needs and Student needs “that school in order to be successful”.
. (Ex A 2)
Parent seeks Student to attend the “
” (Ex A 2)
is an approved New York State private school. (T 4)
“
” (T 23-24)
Student is and . (T 6)
Parent explained some Student educational history: “
.” (T 6)
BACKGROUND
Student is currently enrolled at under an IEP of 11/3/2016. (Ex 10)
IEP includes: Student age of , classification of , student, , (Ex 10-1); (Ex 10-2); at risk of “ ”, would benefit from (Ex (10-3); ,
, (Ex 10-9);
, and (Ex 10-13).
School location of was recommended. (Ex 11 & 12)
Parent requested an IEP meeting via letter of 01/09/2017. Request included that the class recommendation was inappropriate. She also included a letter from a regarding the Student. (Ex 13)
Letter included that Student needs:
. (Ex 13-2)
A meeting was held on 01/19/2017. Attendance page entered into evidence.
(Ex 14)
Though it appears to be an attendance page for an IEP meeting no new IEP was developed. (Ex 14) When the IHO inquired as to whether an IEP was developed at the 01/19/2017 meeting the DOE representative advised: “They created the same
IEP.” (T 38)
Same recommendation was made to and reference made to IEP meeting of 11-03-2016. (Ex 16-1)
THE PARENT’S POSITION
Parent presented her position for the Student at hearing.
Parent entered into evidence acceptance letter from for the 2016- 2017 school year, dated 12/22/2016. Letter includes a class ratio of , and . is a program. (Ex B)
Parent testified as to her child’s educational history and educational needs.
Testimony included:
(T 44-45);
Student’s current school is “
“ (T 46); current class has students (T 46); class has , after ’s evaluation Parent researched, found , and attended an open house (T 47).
PARENT WITNESS
( ) reviewed her educational and professional background, and testified as for . “
” (T 50)
“
“ (T 51-52)
Parent had come to for an interview. (T 52)
detailed the admission process. “…
…” ( T 53)
Application is reviewed. Students generally demonstrate
. “…
” (T 54)
“…
.” (T 55)
“…
…” (T 56)
Student would be assessed and placed in according to at the time. (T 57)
Student class would have . (T 58)
Witness was asked why the Student is appropriate for the .
“
.” (T 59)
Witness believes the Student is in need of a program. Student has been having difficulty and . “
.” (T 59-60)
does based on student’s needs. (T 60)
program has the appropriate class size of for the Student. (T 65)
PARENT WITNESS
( ) reviewed her educational and professional background, and testified as at . is familiar with the Student. (T 73-74)
Student is in her year at in a class of up to students, with . (T 74-75)
Student receives . (T 75)
Referring to the recommendation: “…
.” (T 75-76)
Referring to the : “…
.” (T 76)
Current class is not appropriate for the Student. (T 77)
Witness agrees with Student need for a program. “
”. (T 77)
DEPARTMENT OF EDUCATION POSITION
( ), District Representative, presented the DOE position, at
Pre Hearing Conference. DOE position is that the program recommendation is appropriate at this time. (T 7)
( ) appeared as District Representative on 03/08/2017 to present to DOE case. “
.” (T 24)
DOE was unable to present any witnesses at hearing and otherwise did not avail itself of its opportunity to present its case on their scheduled hearing date.
At hearing of 03/22/2017 DOE representative advised: “…
.” (T 39)
Parent had not yet been contacted regarding settlement. (T 39)
Witness was at the Student’s 11/03/2016 IEP meeting. She disagreed with the DOE recommendation. DOE representative advised that the Student had to go to a program first before anything other can be recommended. (T 83)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.
2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y.
Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Case No. 165310
Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent.
Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir.
Aug. 19, 2008]).
IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189).
The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v.
Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)
(20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F.
Supp. 2d 384, 388 [S.D.N.Y. 2009]).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 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]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No.
06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087).
The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (S chool
C om m ittee of the T ow n of B urlington v, D epartm ent of E ducation,
Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No.
01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).
Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373
F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y.
2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167
F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-
079; Application of the Dep’t of Educ., Appeal No. 07-032).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided
While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-
71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).
DOE PROPOSED IEP AND FAPE for 2016-2017 SCHOOL YEAR
DOE made no case presentation offering any evidence of a FAPE offer to the
Student.
Evidence actually presented at hearing all points to a denial of FAPE for the
Student.
Parent and Parent witnesses are found to be credible. All evidenced a knowledge of the Student and her education needs.
Parent related Student’s failed educational history, which included
(T 6)
Parent also rejected IEP of 11/03/2016 (Ex 10) and requested another IEP meeting. (Ex 13)
DOE failed to address any concerns of Parent at another meeting of 01/19/2017.
DOE failed to consider letter Parent provided which detailed Student needs. DOE contends it had “reconvened a number of times“ and felt the offer of placement was appropriate. (T 39)
DOE contends on one hand that it “reconvened” ay a meeting held on
01/19/2017. Attendance page entered into evidence. (Ex 14)
No IEP was actually created. Instead, the DOE contends “They created the same IEP.” (T 38)
This testimony is not accurate as the same recommendation was made to and reference made to IEP meeting of 11-03-2016. (Ex 16-1)
I find the DOE failed to establish an offer of FAPE for the Student for the 2016
2017 school year.
This is in part due to the failure to consider Parent provided information which contained important information. (Ex 13) I note that this information does not weigh on the 11/03/2016 IEP. (Ex 10) It does weigh against the DOE relative to equities as it evidences a lack of willingness to include the Parent in the IEP process. Furthermore it evidences an attempt by the DOE to present to the Parent that an IEP took place, when in fact it had not.
Evidence provided all points to the Student being denied a FAPE for the 2016-
2017.
Parent requested an IEP meeting via letter of 01/09/2017. Request included that the class recommendation was inappropriate. She also included a letter from a regarding the Student. (Ex 13)
Letter included that Student needs:
. (Ex 13-2)
Current school placement provided testimony that the placement is not appropriate.
Referring to the recommendation: “…
.” (T 75-76) Witness continued that the current class is not appropriate for the Student. (T 77)
I find that the DOE failed to provide an appropriate IEP and placement for the student for the 2016-17 school year.
APPROPRIATENESS OF THE PLACEMENT
Parents and witnesses detailed the program and placement.
No evidence was presented that contradicted the credible evidence supportive of
.
Appropriateness of was evidenced by testimony which included:
is an approved New York State private school (T 4); a private special education school (T 23-24); IEP information includes would benefit from (Ex (10-3); (Ex 10-9); Letter includes that Student needs:
(Ex 13-2);
. “ (T 51-52)
detailed the application and acceptance process which identified Student needs and appropriate class for the Student. ( T 53-57) Acceptance letter provided.
(Ex B)
Student class would have . (T 58)
detailed reasons why is appropriate for the Student. \was able to confirm that Student did fit in terms of the grouping, in terms of the
, “
.” (T 58-59)
does based on student’s needs. (T 60)
program has the appropriate class size of for the Student. (T 65)
Witness from Student’s current school also supported the placement.
Referring to the : “…
.” (T 76)
Witnesses also justified the need for a program Student has been having difficulty and is currently . “
.” (T 59-60)
agrees with Student need for a program. “
”. (T 77)
I find the placement to be appropriate and that it provides a program specifically tailored to meet the individual needs of the student, for the 2016-2017school year.
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, corresponded with the DOE, and in no way frustrated any attempt by the DOE to offer the Student a FAPE. (Ex 10, 13 & 14)
ORDER
1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2016-2017 school year.
2. DOE shall authorize, and directly fund, Student placement at .
3. DOE shall immediately convene an IEP meeting to conform the IEP as per acceptance letter of . IEP to effectuate placement at . IEP to include class ratio of , Related Services of ,
, placement as non-public school day program, and program.
4. DOE shall provide .
5. This decision is subject to appeal and review by the State Review Officer. Dated: April 14, 2017
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA:
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
ENTERED 02/23/2017
A Due process complaint, 1/19/17, two pages
ENTERED 03/22/2017
B Acceptance letter from , 12/22/16, one page
DEPARTMENT OF EDUCATION
ENTERED 03/08/2017
1 Excluded Duplicate
2 Initial referral to special education, 5/27/16, three pages
3 , 9/9/16, 15 pages
4 Consent for evaluation, 9/13/16, three pages
5 , 9/13/16, three pages
6 , 10/18/16, two pages
7 , 10/19/16, three pages
8 , 10/19/16, seven pages
9 CSE meeting notice, 6/20/16, three pages
10 IEP, 1/3/16, 15 pages
11 Prior written notice recommendation, undated, four pages
12 School location letter, 11/9/16, two pages
13 Requisition for additional meeting, 3 1/9/17, two pages
14 Additional meeting attendance page, 1/19/17, one page
15 Prior notice recommendation, 1/25/17, four pages
16 School location letter, 1/25/17, two pages
IMPARTIAL HEARING OFFICER
I Grant of Extension of Compliance Date, 03/23/2017, three pages.
Footnotes
[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education