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FINDINGS OF FACT AND DECISION
Case Number: 165323
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 6, 2017
April 28, 2017
May 2, 2017
Actual Record Closed Date: July 27, 2017
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2017
Attorney — Parents
Attorney Mother Attorney Department of Education — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2017
Attorney — Parents
Attorney Mother Attorney Department of Education Department of — Parents
(via telephone) Education Department of
(via telephone) Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2017
Attorney Mother Attorney Department of Education — Parents
Parents
(via telephone)
INTRODUCTION
On April 6, 2017, April 28, 2017, May 2, 2017 I held an impartial hearing in this case pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C.
1415(f)(1) regarding the education program of a school-aged child, (“ ”).
The hearing commenced at 9:40 a.m., 10:07 a.m. and 10:09 a.m. respectively, and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
. On July 21, 2015 he was classified as having an . On January 4, 2016 the classification was changed to . For the 2014-2015 school-year attended a program at . For the 2015-2016 school-year attended the for one month after which he transferred to the , a public school placement, in October 2015.
The parents, by their attorney , filed a Request for an Impartial Hearing dated January 24, 2017 alleging that the Department of Education filed to provide with a Free and Appropriate Education (“FAPE”) for the 2014-2015 school-years (Parents’ Ex. A). The parents raised several issues, some of which were resolved prior to the impartial hearing. The allegations that remained at the time of the impartial hearing were that the Department of Education failed to provide with a FAPE for the 2014-2015 and 2015-2016 school-years and that the parents were entitled to be reimbursed for the services that they obtained for during the 2015-2016 school-year (Parents’ Ex. A at 5).
I was assigned as impartial hearing officer in this case on January 27, 2017. The original compliance date was April 7, 2017. Pursuant to a request by both parties on April 6, 2017 for the availability of witnesses I extended the compliance date to May 7, 2017 and scheduled a hearing for April 28, 2017. At the hearing on that date at the request of both parties for the availability of witnesses I extended the compliance date to June 6, 2017 and scheduled a hearing for May 2, 2017. At the hearing on that date at the request of Case No. 165323 both parties in order to submit closing briefs I extended the compliance date to July 6, 2017. Pursuant to a request by both parties on July 2, 2017 for this hearing officer to review the transcripts and the briefs submitted by both parties and to render a Decision and Order in this case I extended the compliance date to August 5, 2017. The compliance date was subsequently adjusted to August 7, 2017.
The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the case involved the 2014-2015 and 2015-2016 school-years and thus was not harmed by the extensions;
(b) in accordance with due process the parties were entitled to present their witnesses and to have this hearing officer review the transcript and evidence prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the ’s education in any way.
THE ISSUES IN DISPUTE AT THE IMPARTIAL HEARING
1) Whether the Department of Education failed to provide with a FAPE for the 2014- 2015; 2) whether the parents are entitled to reimbursement for the services provided by during the 2015-2016 school-year; and 3) whether the equities favor the parents or the Department of Education.
FINDINGS OF FACT
is a . She has a Master’s Degree in and is a certified (Tr: 60). is a . He has a Master’s Degree in and is a licensed (Tr: 74-75). is a New York State and she has a certificate in . Ms. has a Master’s Degree in and has provided to students since 2006 (Tr: 191-194,
228-229). is ’s mother (Tr: 124).
A.
For the 2014-2105 school-year attended a program at ( : 124-125).
During the first few months of the school year ’s teacher told that was “ ” in school and he was having difficulty
( : 125). During the “first month or so” of school ’s teacher told that (Tr: 125-126). One day at the beginning of the year
(Tr: 126).
At a conference at the end of 2014 ’s teacher suggested that the parents have evaluated for special education services. The teacher said that he could not make the referral and that the parents would have to do it (Tr: 126-127). On or about February 2, 2015 the parents faxed a request for evaluations to the CSE (Tr: 127-128; Parents’ Ex. B).
On April 30, 2015 was evaluated at the (Tr: 128-129;
Parents’ Ex. C). The who conducted the evaluation told that she thought and she recommended that he receive to address needed for (Tr: 129-130; Parents’ Ex. C at 3). called the at the to try and “push [ ] along” the process of scheduling an Individualized Education Program (“IEP”) meeting (Tr: 130-
131). The Committee on Special Education (“CPSE”) did not conduct an IEP meeting for the 2014-2015 school-year and did not receive any special education services during that year (Tr: 72, 130).
, the at the had recommended
someone for but that person did not have time in her schedule and she recommended Ms. . contacted Ms. in late June or early July and arranged a meeting to see if she thought it was appropriate to treat (Tr: 153, 185-186).
told Ms. that , that and that (Tr: 154). met with Ms. in early July
2015, “probably” on July 15th, and then arranged for to meet with her (Tr: 154-156;
Parents’ Ex. O). met with Ms. for the first time on July 21, 2015, the date of the IEP meeting (Tr: 156; DOE Ex. 1).
conducted the July 21, 2015 IEP meeting for the 2015-2016 school-year and participated as the and district representative. The other persons at the meeting were , a , , a from the , and (Tr: 60, 62, 73, 131, 153,
156; DOE Ex. 2). The IEP team had evaluations that indicated and that he required . The evaluations did not state anything with respect to and (Tr: 62, 71; Parents’ Ex. C).
At that meeting told the IEP team that ,
, that and that
, which resulted in a “ ” She stated that
the school was concerned with and that both the teacher and the principal had recommended that she have evaluated. They talked about different schools and programs (Tr: 132-133, 157, 163-165; DOE Ex. 1 at 1).
The IEP team classified as having an ; objected to the classification. The IEP team recommended an and as a related service to be provided . The purpose of the was to address the concerns of
(Tr: 62-65, 67-68, 95, 99, 106, 158-159; DOE Ex. 1 at 1, 4, 7). did not think the services offered on the IEP were sufficient to meet ’s needs (Tr: 160). There was no discussion about or about the parents having retained private services for The parents did not mention that did not feel secure in the classroom. The IEP team did not have a report from a private and no participated at the meeting (Tr: 66-67).
The implementation date for the IEP was September 2015 when was to enter
(Tr: 68). If the child attended a Department of Education school that school would have access to the IEP. If the child did not attend a public school the parents would have to let the school know that the child had an IEP for those services (Tr: 69). If the public school was not able to implement the services there would be another IEP meeting to discuss the child’s programming could address the student’s needs (Tr: 70-71).
It was not clear to at the end of the IEP meeting whether was going to receive special education services for the 2015-2016 school-year. had never been to an IEP meeting before and did not think she knew “what an IEP was” (Tr: 133-134). did not receive an IEP prior to the beginning of the 2015-2016 school-year and she did not receive a Final Notice of Recommendation (“FNR”) for a school placement (Tr: 134).
was not asked at any time to sign the IEP (Tr: 160).
During September 2015 attended the , a small private school for special needs students that has classrooms with a student-teacher ratio of (Tr: 134-135).
From mid-September to early October 2015 the parents contacted the CSE several times.
Mr. spoke with Mr. went through the IEP with and explained what was on it, including the fact that the IEP recommended for (Tr: 95-
99, 135-136). did not tell Mr. that she had obtained private services for (Tr: 97). asked for a new evaluation because she believed the evaluation conducted in June 2015 was “incorrect.” A new evaluation was conducted in November 13, 2015 (Tr: 99-100, 136-137; Parents’ Ex. H). No one from the CSE asked to sign a consent form for the services recommended on the July 2015 IEP or told her that she had to sign a consent form in order for to receive the services on that IEP. never told Mr. that she would not consent to the services on the July 2015 IEP and she never refused to consent to the services on that IEP (Tr: 138). If the Department of Education had asked for ’s consent to the services she would have provided it (Tr:
141).
The told ’s parents that they “couldn’t handle him” and began in an at the on October 5, 2015 (Tr: 138-140). Before started at the school both the , , and the told that the school would be able to provide the services on ’s
July 2015 IEP (Tr: 139-140). The principal never asked to sign a consent form in order for to receive the services (Tr: 140).
During the first week of October 2015 met with , the who would be providing ’s services. Ms. told that she would provide with but that she did not think was ready for the mandated on the IEP (Tr: 140-141;
DOE Ex. 1 at 4). told Ms. that was seeing Ms. and Ms.
replied that she thought those sessions should continue (Tr: 141). In October 2015 Ms.
spoke with Ms. (Tr: 142, 172, 234, 246-247). The purpose of the call was to and give Ms. some insight to r and to see how was doing at the school (Tr: 205-206).
Ms. told Ms. that was “
” (Tr: 234). Ms.
also spoke to Ms. (Tr: 234-235). Ms. told Ms. that she believed ’s had an “ ” and that he was “ .” She advised the teacher that “ ” and that he “
” (Tr: 235).
Ms. told that she would send her reports after her sessions with received reports of actual sessions that she had with recalled that the reports indicated that the sessions varied from week to week. Some weeks “ ” and they (Tr: 176). A few times she told that when it was time for her session she went get but that he did not “ ” with her and she “ ” (Tr: 142, 173,
175). As far as knew Ms. only gave all year (Tr:
175-176).
In November 2015 was evaluated by a private ,
(Tr: 142-143; Parents’ Ex. J). advised Dr. that was working with Ms. and that fact is noted in Dr. ’s report (Tr: 143; Parents’ Ex. J at 3).
provided the CSE with Dr. ’s report in December 2015 (Tr: 143-144).
Mr. participated in an IEP meeting for on January 4, 2016. The other participants were a Department of Education , , the at ’s school, , a teacher, a , Ms. , the and both parents (Tr: 80-81, 85, 165; DOE Ex.
11). Mr. recalled that the IEP team had the evaluation, two observations, a evaluation by Dr. that was provided by the parents and a teacher’s report from the where was a student at the time concerning his (Tr: 81, 103; DOE Ex. 9, Ex.
10; Parents’ Ex. J).[1] Mr. conducted one of the observations on December 14, 2015 (Tr: 81-83; DOE Ex. 12).2. testified that she was 100% positive that the parents brought a letter from Ms. to the IEP meeting and that they provided it to the IEP team at the beginning of the meeting. That letter was written in support of the parents’ application to and Ms. provided it to the parents so that they could take it to the IEP meeting (Tr: 232-233; Parents’ Ex. Q). testified that Ms.
noted that she had the letter. The letter was not discussed at the meeting (Tr:
112, 146, 165-167, 207-208). No one suggested to that she have Ms.
participate at the meeting.
Mr. did not recall whether any of the evaluations reviewed at the January 4, 2016 IEP meeting indicated that (Tr: 83). He “believe[d]” that the evaluation submitted by the parents indicated that needed services and that he was receiving services. At the meeting they discussed that was receiving outside services and those services were referenced in Ms. ’s report (Tr: 84, 86, 103-104, 146, 165; Parent’s Ex. J at 3).
Mr. thought that the parents’ concerns were “
” (Tr: 85-87).
The December 2015 teacher’s report from the indicated that began receiving beginning on October 14, 2015 and that as of the date of the report, December
2 The transcript mistakenly identifies the date of this observation as December 14, 2013 (Tr: 82; see DOE Ex. 12).
2015, the services were “ongoing” (Tr: 115; DOE Ex. 9 at 5). Mr.
did not recall the parents stating that or that
(Tr: 86). In his observation on December 12, 2015 Mr. noted that the school reported that . The observation indicates that did not demonstrate
(Tr: 108-110). At the IEP meeting on January 4, 2016 ’s teacher stated that ’s ranged from “ ” and that he exhibited . The teacher also stated that may
“
” (Tr: 109-110, 176-177).
The IEP team changed ’s classification to because it believed that in addition to ’s concerns were
(Tr: 97-98, 167-168-169). The IEP team recommended a program and increased ’s mandate to and removed the mandate. It also recommended
(Tr: 84, 106-107, 111, 147, 179-180;
DOE Ex. 10 at 1, 9, 11). Mr. stated that the changes in ’s program recommendation from the July 2015 IEP were significant and would not have been made if was making progress in his then-current program (Tr: 111-112; DOE Ex. 10). Mr.
did not recall why was removed from ’s IEP at that meeting
(Tr: 107-108). did not tell anyone at the meeting that she would decline to consent to providing the services recommended on the IEP (Tr: 147).
The IEP indicates that had not received any services up to that point (Tr: 102; DOE Ex. 10 at 13). Mr. testified that that statement was correct because had told him that she did not agree with the July 2015 IEP and so “consent was never signed” (Tr:
102-104).
After the IEP meeting asked Ms. if she was still providing with his sessions. Ms. replied that was “ ” and that while was spending time in her office she was doing other work during that time and was “ ” (Tr: 148; DOE Ex. 9 at 5). spoke to the , Ms. and the about the services mandated on ’s January 2016 IEP. They told her that the school could not provide the services because the CSE team had “recommended another school placement.” They suggested that the parents take out of the school because and that they were “having trouble handling him.”
They suggested that she look at the other placement, which was a .
visited that school and did not think it was appropriate for and she notified both Ms.
and Mr. by email of that fact (Tr: 148-149. 178-179, 185, 234, 246).
testified that she verbally consented to the services and that she was never told that she had to sign a document regarding her consent (Tr: 183).
During the course of ’s 2015-2016 year at the the school reported that .
than he
had been at the beginning of the school-year (Tr: 152, 176-177).
In February or March 2016
(Tr: 177-178, 245-246). did not receive any services at the during the 2015-2016 school-year (Tr: 151). discussed with Ms. who gave her suggestions to
(Tr: 177-178). When was working with Ms. during that year he made progress in that
(Tr: 152).
subsequently spoke to , a person in charge of at the Department of Education. Ms. told her that even if the parents did not think that the recommended placement was appropriate should be receiving all of the services on his IEP at his current setting (Tr: 150). did not remove from the because she was “hoping” that could get services there until the parents found an appropriate placement (Tr: 183-184). By the end of the 2015-2016 school-year was “ .” thought that indicated that
(Tr: 176-177).
Mr. participated in an IEP meeting for on May 3, 2016 (Tr: 87). The other participants at the meeting were Ms. , Ms. , the parents and a private , Dr. (Tr: 87-88, 93-96, 150, 170; DOE Ex. 8).[3] testified that she emailed or faxed the December 30, 2015 letter from Ms. to Ms.
and to Mr. prior to the IEP meeting and that she also brought the letter to the meeting (Tr: 150-151, 171). Mr. did not recall reviewing that letter at the meeting but testified that it was “possible” that the parents had emailed a letter from their private to the CSE on two occasions prior to the May 2016 meeting as “evaluations and things like that were given to the of the DOE at that time”
(Tr: 112-113). No one suggested to that Ms. participate at the meeting (Tr:
171),
The purpose of that meeting was to review the evaluation and add to the prior IEP (Tr: 88). Mr. did not recall whether there was any conversation at the meeting regarding but he stated that if the parents had indicated that it would have been noted by the IEP team. Mr.
did not “believe” that the parents told the IEP team that and the parents did not raise any concerns about
(Tr: 92-93).
The program recommendation on that IEP was a continuation of the recommendation for
(Tr: 89-91; DOE Ex.
7 at 9, 12). Mr. did not believe that the parents ever signed consent and he did not know to what extent the child’s school was able to implement the IEP (Tr: 94-95). He explained that until parents sign consent to the recommendation on the IEP it is not an “agreed upon IEP” (Tr: 94-95).
B.
As noted above Ms. is a New York State and she has a certificate in . Ms. has a Master’s Degree in and has provided to students since 2006 (Tr: 191-194, 228-229). When working with Ms.
uses
(Tr: 194-196, 203). As part
of Ms. ’s practice she addresses (Tr: 196). Ms.
explained that is focused on
. When the private sessions are primarily focused on , the function and purpose of the and the are essentially the same
(Tr: 197).
’s parents told Ms. that
(Tr: 223-224).
The parents were also concerned that
and they were concerned about (Tr: 224). Ms. began working with on July 21, 2015 after the evaluation from the recommended (Tr: 197-199; Parents Ex. C).
Ms. is trained to diagnose, observe and evaluated based on
(Tr: 211). An integral part of developing a diagnosis for a child is information provided by the parents. It seemed that that, based on the evaluation,
“ ” (Tr: 198-199, 251-253). Ms.
provided services to to and during the 2015-2016 school-year she met with him (Tr: 199). At the beginning
.
.
(Tr: 214, 242-243).
After working with Ms. gave him a diagnosis of a “ ” Ms. reached that diagnosis because
.
(Tr: 200-201, 209-210, 214, 249-250). Ms. believed that interfered with his and his
(Tr: 201, 250). Ms. testified that ’s “
” impacted particularly in (Tr: 202). Ms.
did not diagnose with as
(Tr: 200, 236-241, 253-254).
From July 2015 to June 2016 Ms. used
with to meet his needs and address his , particularly since
. The was to
(Tr: 203, 208-221). Ms. opined
that made progress since working with her. ’s “
(Tr: 204).[4] When Ms.
began working with .
At the time of the impartial hearing (Tr: 212-
213).
Ms. opined that indicated that the school was not providing him with sufficient support (Tr: 248-249).
The parents paid Ms. a total of for her services from July 15, 2015
(parent’s first meeting with Ms. ) until June 21, 2016. The invoice indicates that Ms. provided for , which entails provided a diagnosis and creating treating goals to address a (Tr: 227; Parents’ Ex. 0). The
fee covered at a rate of per session, of which were sessions with only the parents (Tr: 227, 244-245; Parents’ Ex. O).
CONCLUSIONS OF LAW AND DISCUSSION
The legal standard applicable to a request for reimbursement for educational services, is well established. A Board 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. School
Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053.
The Conclusions of Law are based on the Findings of Fact as related above with full citations to the record. Unless otherwise indicated below I credit the testimony of the witnesses who appeared at the impartial hearing.
I.
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C.
§§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v.
Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. at 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).
To meet its burden, a Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1].
The Department of Education did not present and testimony or witnesses to contest the parents’ allegation that it failed to provide with a FAPE for the 2014-2015 school-year and it conceded that it failed to provide a FAPE for the 2015-2016 school-year (Tr: 8-
9). Nor did the Department of Education provide any testimony or evidence to refute the parents’ allegations that there was no IEP meeting held for for the 2014-2015 school-year despite ’s public school teacher being aware early in the year of ’s special education needs and advising the parents to get him evaluated, and ’s request for evaluations on February 2, 2015 (Parents’ Ex. B). Nor did it refute the parents’ allegation that during the 2015-2016 school-year it failed to provide with the mandated on ’s July 21, 2015 and January 4, 2016 IEPs (See DOE Ex. 1 at 4;
Ex. 10 at 9).
2014-2015
The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services," and courts have interpreted the child find obligation as "distinct from the requirement of [a school district] to provide [a] FAPE to its residents." 20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove Sch. Dist.
v. T.A., 557 U.S. 230, 245 (2009); see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR
200.2[a][7]. The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade." 34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][7]; D.K.
v. Abington Sch. Dist., 696 F.3d 233, 249 (3dCir. 2012); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 (S.D.N.Y. Nov. 18, 2011).
The purposes of the "Child Find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. See E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012). A district's “Child Find” duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.” J.S., 826 F. Supp. 2d at 660; see Application of a Student Suspected of Having a Disability, Appeal No. 10-128.
Because the Department of Education’s Child Find obligation is an affirmative one, the IDEA does not require Parents to request that the district evaluate their child. Application of a Child Suspected of Having a Disability, Appeal No. 05-127.
credibly testified that both ’s and told her that
(Tr: 125-126). That was significant and, under the Child Find obligations of the Department of Education, should have triggered a referral to the CPSE at that time. However, ’s teacher waited until the end of 2014 to advise to have evaluated and erroneously told her that he was unable to do so (Tr: 126-127). As a result of the teacher’s failure to refer for evaluations when it was suspected that had a disability in that , the process was delayed until the teacher first advised at the end of 2014 that should be evaluated and an IEP meeting was not held until the school-year concluded. Thus, was precluded from receiving services during the 2014-2015
school-year.
2015-2016
While the Department of Education concedes that it failed to offer a FAPE to during the 2015-2016 school year, it posits that it was not required to provide the services on ’s July 21, 2015 IEP during that year because the parents never gave written consent for those services (Tr: 186-187; IHO Ex. I at 2-3). This argument has no merit.
The Department of Education did not present any testimony or evidence to show that it advised ’s parents that signed consent was a precursor to obtaining the services for or that any Department of Education employees ever asked the parents to sign consent. Nor did the Department of Education provide any evidence or testimony to present a plausible explanation as to why the parents would refuse to consent to services when it is clear that they wanted the for credibly testified at the hearing that she was never told that she had to sign consent to receive for Notably, even without written consent the and at the told that the school would be able to provide with the related services on the June 21, 2015 IEP.
Indeed, the school did provide with at the beginning of the 2015-2016 school-year, before the providing the services, Ms. , unilaterally stopped her sessions with Notably, Ms. did not testify and the only evidence in the record regarding the cessation of the service was by , who credibly testified that Ms. advised her that did not want to leave the classroom for and that the school no longer wanted to attend because it could not meet his needs (Tr: 142, 148-149, 173, 175-176, 178-179).
Thus, I find that the Department of Education’s failure to identify ’s need for evaluations early in the 2014-2015 school-year and its failure to develop an IEP for that year and its failure provide with his mandates as per his July 21, 2015
( ) and January 4, 2016 IEPs ( ) deprived of a FAPE for the two years in question.
II.
Under the second criterion of the legal standard, ’s parents bear the burden of proof with regard to the appropriateness of the services that the parent obtained for during the 2015-2016 school-year, the year in which he received services by Ms. . N.Y.
Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which met the child’s special education needs. While this case does not involve a unilateral placement, the law regarding reimbursement for unilateral placements is instructive here as well.
In order to be entitled to reimbursement the parents need only demonstrate that the services Ms. provided to were necessary to permit to benefit from instruction." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v.
Carter, 510 U.S. 7, 14 (1993); Frank G. v. B oard of Educ. of Hyde Park , 459 F.3d 356, 364 (2d Cir. 2006), and that the services were "reasonably calculated to enable [him] to make progress in light of [his] circumstances." Endrew F. v. Douglas County School District, 580 U.S. __, slip. op. no. 15-827 at 14-15 (S.Ct. Mar 22, 2017); Rowley, 458 U.S. at 188-189, 207.
I find that the parents presented sufficient evidence and testimony to show that Ms.
, a , provided with services that were appropriate to address his needs at the time, particularly in the absence of any services provided by the Department of Education. Ms. testified and detailed
, explaining
(Tr: 194-196, 203). She testified about was particularly appropriate with since . Ms. described how when she first began working with and that . Her testimony related that
(Tr: 218-221). Based on the information
provided by the parents Ms. concluded that and she worked with him to .
In describing ’s progress over time, Ms. testified that for the 2016-2017 school-year and that . While when Ms. first began working with him, now
(Tr: 204, 212-213). testified that at the end of the 2015-2016 school-year and he “
(Tr: 152).
The Departm ent of Education contends that Ms. ’s services “
” In making
that allegation the Departm ent of Education asserts that M s. ’s testimony “ ” she provided addressed ’s educational needs and relies on the SRO decision in Application of the New York City Department of Education, A ppeal No. 06-029 (IHO Ex. 1 at 3; T r: 5). This argum ent is unav ailing.
A t the outset, the IDEA recognizes “counseling” as a related service under the statute. 34 C.F.R. Section 300.34 (a). The IDEA specifically defines “counseling services” as “services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. 34 C.F.R. Sections 300.34 (c)(2). Ms. is a New Y ork State and a and has been working with children for eleven years, providing and thus is clearly is within the purview of the statute. Moreover, Ms. at no time testified that she provided with “ ”
A s noted in the Finding of Facts above, Ms. explained that is focused on , while focuses on . She testified, however, that when the private sessions are primarily focused on , the function and purpose of the and the are essentially the same (Tr: 197). It is clear from Ms. ’s testimony that she was treating for his issues in school. After she began working with she contacted both Ms. , who was providing with at the , and Ms. , a at the school, to advise them of what she believed to be ’s issues related school (Tr: 205-
206, 234-235). Ms. testified that she believed ’s issues stemmed from . Thus, crediting her testimony I find that her work with was, in fact, related to helping him in school that it was an appropriate substitute for the that the school did not provide.
At the hearing and in its Closing Brief the Department of Education refers to the fact that the parents made no reference to ’s “ ” at the IEP meetings, seemingly inferring that Ms. ’s treatment of for “ ” did not address the underlying reasons that the IEP team mandated (Tr: 62, 66,-67, 83, 92; IHO Ex. I at 3, 5-6).
However, did not testify that Ms. ’s services were obtained to deal with ’s . Rather, as noted, the parents obtained her services in July 2015 because the Department of Education had not yet scheduled an IEP meeting after the evaluation at the had recommended in its April 20, 2015 evaluation report (Parents’ Ex. C at 3). Moreover, the fact that the parents did not specifically reference “ ” when discussing ’s issues has no bearing on the fact that the despite the mandates of on ’s July 21, 2015 and May 3, 2016 IEPs, those services were not provided. And, if Ms. determined that ’s issues in school stemmed from and she treated him accordingly, she certainly addressed issues related to helping , issues that is designed to address.
M oreover, the SRO case relied upon by the Departm ent of Education does not provide precedent and in any event is inapposite. In A ppeal No. 06-029, the CSE recommended a public school placement and school counseling services once a week for 30 minutes.
The parents chose not to place the child in the recommended school and contended both that the counseling services m andate w as insufficient and that the services must be provided by the child’s priv ate therapist. Id.
The SRO found that the Departm ent of Education provided the child with a FA PE as the evidence supported a finding that the recommended public school placement and counseling services w ere appropriate. The SRO also held that there was insufficient evidence to support the parents’ allegation that the child “required two hours of ‘intensive counseling’” or psychotherapy to “enable her to receive an educational benefit.” The SRO also concluded that the private therapist’s report indicated that her therapy “dealt with personal and family issues” and thus that it was not “clear from the record” how the therapy sessions were related to the child’s educational performance. Id.
In stark contrast here, this case is not about the parents wanting a private and/or rejecting the mandates on ’s IEPs. It is undisputed that the Department of Education did not provide with any services at all during the 2014-2015 school-year and that while the July 21, 2015 IEP mandated for the 2015-2016 school year, it provided with a total of only during that time. Neither of those deficiencies were in any way the fault of the parents. Indeed, the only reason that the parents obtained the services of Ms.
was because the Department of Education failed to develop an IEP for the 2014- 2015 school-year after its own evaluator deemed necessary for , and the sessions with Ms. continued during the 2015-2016 school-year because the Department of Education failed to provide the services mandated on ’s
2015-2016 IEPs. There is no question that was entitled to the services as per his IEP and I find that the parents were entitled to get for in light of the Department of Education’s failure to provide it.
In sum, I find that the parents met their burden of demonstrating that Ms. provided appropriate to during the 2015-2016 school-year.
III.
The IDEA 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]; 34 CFR 300.148[d]; E.M.
v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.
At the outset there is no evidence or testimony in the record to suggest that the parents failed to cooperate with the Department of Education or acted unreasonably in any way.
In a letter dated February 2, 2015 the parents notified the CSE that they would like to schedule an evaluation for (Parents’ Ex. B). The parents took for the evaluations as scheduled in April 2015 and they attended the IEP meeting held on July 21, 2015.
After that IEP meeting contacted Mr. to explain the IEP to her. The parents took for additional evaluations scheduled with the Department of Education in November 2015 and they attended the IEP meetings held on January 4, 2016 and May 3, 2016. provided the IEP team with the private evaluation reports and a letter from Ms.
.
The Department of Education, however, alleges that for various reasons the equities of the case are in its favor and that the parents claim should fail on this ground. In making this argument the Department of Education contends that it did not have notice that Ms.
was providing services to the child and that Ms. did not participate in any of the IEP meetings (IHO Ex. I at 3; Tr: 186-187). These arguments are without merit.
To begin, since it is undisputed that the IEP team mandated on both the July 2015 and the January 2016 IEPs and that the Department of Education did not provide those services, neither the fact that Ms. was providing services at the time nor the fact that she did not participate at the IEP meeting has any relevance to the failure of the Department of Education to meet its burden in this case (See Tr: 5, 8).
In any event, on the date of the July 21, 2015 had his first meeting with Ms.
and thus there was nothing to report to the IEP team as Ms. had not yet begun to . And, the CSE had ample notice at the January 4, 2016 and May 3, 2016 IEP meetings that that was receiving services from Ms. . Specifically, Mr. , a Department of Education witness, testified that at the January 2016 IEP meeting the team had the Evaluation by Dr. , that states was receiving
“ ” with Ms. (Parents’ Ex. J at 3). Moreover, both Mr.
and testified that the IEP team discussed ’s outside at the meeting (Tr: 84, 86, 103-104, 146, 165). In addition, testified that she brought a letter from Ms. to the IEP meeting in which Ms. stated that she was working with at the time (Parents’ Ex. Q). also credibly testified that she provided Ms. ’s letter to the IEP team for the May 3, 2016 meeting both by email or fax to the and Mr. prior to the meeting and at the meeting itself (Tr: 150-151,
171). Notably, the Department of Education cites no authority for the assertion that the parents were somehow required to ask Ms. to testify at the IEP meetings. If the IEP team thought Ms. ’s participation to be necessary it could have asked to have Ms. attend the meeting.
I find that the remaining arguments presented in the Department of Education’s Closing Brief do not support a conclusion that the equities require a rejection of the parents’ claims. Rather, I find that the equities of the case support the parents.
** *
In light of the above Findings of Fact and Conclusions of Law, I find that the Department of Education failed to provide with a FAPE for the 2014-2015 and 2015-2016 school years, that the parents met their burden of demonstrating the appropriateness of the services provided by Ms. and that the equities support the parents.
I find that the parents are entitled to reimbursement for the Ms.
provided directly to at the rate of per hour. I also find that the parents are entitled to reimbursement for the initial session on June 15, 2015 at which the parents first met with Ms. , also at the rate of per hour. [5]
ORDER
It is hereby ordered that:
a) Within 30 days of the issuance of this Decision and Order the parents must provide proof of the services that Ms. provided directly to from July 21, 2015 to June 21, 2016 and proof of their meeting with Ms. on July 15, 2015;
b) Immediately upon receipt of those documents the Department of Education is to reimburse the parents in the amount of for each of those sessions.
Dated: August 7, 2017
RONA FEINBERG, ESQ.
Impartial Hearing Officer
RF:
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
DEPARTMENT OF EDUCATION:
Exhibit 1 Individualized Education Program (“IEP”) dated July 21 2015, 8 pages
Exhibit 2 IEP Meeting Attendance Sheet dated July 21, 2015, 1 page
Exhibit 3 IEP Meeting Minutes dated July 21, 2015, 2 pages
Exhibit 4 Notice of Meeting dated July 9, 2015, 3 pages
Exhibit 5 Progress Report dated October 31, 2014, 9
pages
Exhibit 6 Evaluation dated November 13, 2015, 2
pages
Exhibit 7 IEP dated May 3, 2016, 13 pages
Exhibit 8 IEP Meeting Attendance Sheet dated May 3, 2016, 1 page
Exhibit 9 Progress Report dated December 2015, 10 pages
Exhibit 10 IEP dated January 4, 2016, 13 pages
Exhibit 11 IEP Meeting Attendance Sheet dated January 4, 2016, 1 page
Exhibit 12 Classroom Observation dated December 14, 2015, 2 pages
PARENTS:
Exhibit A Hearing Request dated January 24, 2017, 5 pages
Exhibit B Parent Request for Evaluation dated February 2, 2015, 1 page
Exhibit C Assessment dated April 30, 2015, 3 pages
Exhibit D Social History dated April 30, 2015, 4 pages
Exhibit E Evaluation dated June 2, 2015, 4 pages
Exhibit F Classroom Observation dated November 9, 2015, 1 page
Exhibit G Parent Correspondence with CSE dated November 13, 2015, 2 pages
Exhibit H Evaluation dated November 13, 2015, 6 pages
Exhibit I Evaluation Bill dated July 15, 2016, 1 page
Exhibit J Evaluation dated December 4, 2015, 10 pages
Exhibit K Omitted as duplicative
Exhibit L Progress Report dated February 18, 2016, 2 pages
Exhibit M Recommendation of Services to School dated March 14, 2016,
1 page
Exhibit N Bill dated March-June 2016, 1 page
Exhibit O Invoice dated July 15, 2016, 1 page
Exhibit P Due Process Response dated February 1, 2017, 3 pages
Exhibit Q Letter dated December 30, 2015, 2 pages
HEARING OFFICER
Exhibit I Department of Education Closing Brief dated June 30, 2017, 10 pages
Exhibit II Parents’ Post-Hearing Brief undated, 26 pages
Exhibit III Case Follow-Up Sheets with Extension Information various dates, 4 pages
Footnotes
[1] did not recall ever having seen the Report (Tr: 173).
[3] The transcript misidentifies the meeting date as May 23, 2017. The meeting actually took place on May 3, 2016 (Tr: 87; DOE Ex. 7 at 12, DOE Ex. 8).
[4] At the time of the impartial hearing, which was during the 2016-2017 school-year and not at issue in the case, Ms. testified that . Ms. testified that is more available to learn because (Tr: 204).
[5] In their Closing Brief the parents also ask for reimbursement for the evaluation provided by Dr. and the provided by (IHO Ex. II at 26). However, those issues were not addressed at the impartial hearing but were the subject of an agreement between the parties before the hearing on the merits took place (Tr: 5, 11-12). Thus, those payments are not part of my Order in the case.