New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165325

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 6, 2017

February 17, 2017

February 27, 2017

March 15, 2017

March 17, 2017

Actual Record Closed Date: March 23, 2017

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 6, 2017

For the Student:

Attorney

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 17, 2017

For the Student:

Attorney

parent

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 27, 2017

For the Student:

Attorney

Parent (Via Telephone)

(Via Telephone)

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 15, 2017

For the Student:

Attorney

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 17, 2017

For the Student:

Attorney

For the Department of Education:

District Representative

INTRODUCTION

This matter came before me pursuant to the Individuals with Disabilities Education Act. The hearing was concluded on March 23, 2017. The school district conceded that it failed to provide a FAPE during the 2016-17 school year. The parent established that the program selected by the parent is appropriate and that equitable considerations support the parent's claim. Therefore, the parent is entitled to the relief he seeks.

SCHOOL DISTRICT

The school district conceded that it did not provide FAPE during the 2016-17 school year. However, the school district did not concede the appropriateness of the unilateral placement selected by the parent.

PARENT

The testified on behalf of the parent. He testified that provides to the student and is able to provide the and the student requires. is able to provide appropriate to the student,, while simultaneously meeting his need for to ensure that. (Tr. At 46-71)

The parent testified on his own behalf about the student's educational history and his efforts to obtain appropriate services from the school district. (Tr. At 72-84)

The parents also submitted documentary evidence. (Exhs. A-U)

APPLICABLE STANDARDS – FAPE

As was recently restated in Appeal No. 16-016, two purposes of the 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 unIique 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 Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student 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; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 8 Because the district does not cross-appeal from the IHO's determinations which were adverse to the district, those determinations have become final and binding on the parties and will not be reviewed on appeal (8 NYCRR 200.5[j][5][v]; M.S. v. New York City Dep't of Educ., 2 F. Supp. 3d 311, 325 [S.D.N.Y. 2013]). 9 State regulations permit service of "a reply... to any procedural defenses... or to any additional documentary evidence served with the answer" (8 NYCRR 279.6). While the reply was not served in a timely manner, I exercise my discretion to accept it for the limited purposes permitted by State regulations. 10 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; 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 procedural violations are alleged, an administrative 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at 7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO'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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, 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). Nonetheless, 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, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). 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 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed. App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). 11 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. New York City Bd. 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 proof is on the school district during an impartial hearing, except that 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 R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

FINDINGS

Having reviewed the entire record, including all of the testimony and documentary evidence presented, I find that the student was denied a FAPE during the 2016-17 school year, that is an appropriate educational placement, and that equitable considerations favor the parent. Therefore, the parent is entitled to the relief he seeks.

As to prong one, the school district conceded that they did not provide FAPE. As to prong two, the parent presented credible evidence to establish that is an appropriate educational placement that will provide the services the student requires. As to prong three, I find that the parent cooperated fully with the school district in attempting to place the student in an appropriate public or approved non-public school placement, and that all equitable considerations favor the parent.

I have considered the parties' remaining contentions and did not need to reach them, or find them to be without merit.

ORDER

I hereby Order full reimbursement and prospective payment for the tuition for, related expenses of, and for the student's attendance there for the 2016-17 school year, in the tuition amount of.

Dated: March 27, 2017

ESTHER MORA, ESQ.

Impartial Hearing Officer

EM:

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 Demand for Due Process Hearing, 1/3/17, 6 pages

B IEP, 8/1/16, 17 pages

C Parent Letter for Notification of Unilateral Placement, 12/16/16, 1 page

D , 7/18/16, 8 pages

E , 11/23/15, 22 pages

F Report Card MP 1, 2016-2017, 2 pages

G Enrollment Contract, 1/13/17, 5 pages

H Tuition Receipt, 1/3/17, 5 pages

I , 11/17/16, 2 pages

J Findings of Fact and Decision, 6/9/16, 26 pages

K Closing Statement, 3/15/17, 10 pages