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FINDINGS OF FACT AND DECISION
Case Number: 165699
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 5, 2017
May 19, 2017
Actual Record Closed Date: September 12, 2017
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 5, 2017
Attorney — Parents
(via telephone)
Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2017
Attorney — Parents
Father — Parents
Parents
(via telephone)
Parents
(via telephone)
Parents
(via telephone)
Parents
(via telephone)
Representative — DOE
INTRODUCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent by letter dated March 10, 2017, and corrected on March 20, 2017. (Parent’s Exhibits A and B) A hearing was held on May 5, 2017, and May 19, 2017, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.
In scheduling the hearing dates, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]
BACKGROUND
is a who attended the (“ ”)
for the 2016-2017 school year, beginning on January 3, 2017. She was a student during this school year. Prior to her enrollment at , she attended the , a private program. has previously been classified by the DOE’s Committee on Special Education (“CSE”) as a student with a disability. She has diagnoses of . By letter dated March 2, 2016, the Parent requested “that the CSE provide a Free Appropriate Public Education” to and included his written consent for the DOE to conduct an evaluation of her. (Parent’s Exhibit C) By email dated April 29, 2016, the Parent provided the CSE with a recent assessment to assist the CSE in their assessment of (Parent’s Exhibits D and I) In a letter to the CSE, also dated April 29, 2016, the Parent stated that there had not been a CSE review scheduled to develop an Individualized Educational Program (“IEP”) and to make a program recommendation for for the 2016-2017 school year. (Parent’s Exhibit E) In that letter, the Parent also informed the DOE that he would have to secure placement for his child at the for the 2016-2017 school year in case the DOE did not offer an appropriate program to her. He also stated that, in the event that there was no program/placement offered, the Parent would be seeking tuition reimbursement from the DOE. The Parent reiterated his request for a CSE meeting. The
CSE did not convene in preparation for the 2016-2017 school year and, therefore, there was no IEP developed for and no placement made by the DOE in advance of the school year.
By letter dated November 7, 2016, the Parent informed the DOE that, since a CSE review had still not been conducted, he would be securing a placement at for the remainder of the 2016-2017 school year and seeking tuition reimbursement from the DOE. (Parent’s Exhibit F) The Parent reiterated his request for a CSE meeting. By letter dated December 6, 2016, the Parent confirmed the placement at beginning January 3, 2017, while continuing to request a CSE meeting. (Parent’s Exhibit G)
The Parent asserts that the DOE failed to provide a FAPE to for the 2016- 2017 school year and is seeking tuition reimbursement for the private placement at , including , from January 3, 2017, through June 30, 2017.
POSITIONS OF THE PARTIES
THE DOE’S CASE
The DOE chose not to present a case. The DOE did not assert a position or raise any opposition to the Parent’s case. (T. 13; 94-95) To be clear, the DOE did not present an opening statement at the outset of the hearing or make a closing argument at the end of the hearing. The DOE did not maintain that it offered a FAPE to for the 2016- 2017 school year, did not challenge the Parent’s unilateral placement at , and did not cite any equitable considerations that should limit or bar the Parent’s request for Case No. 165699 reimbursement. A review of the record, including the evidence submitted by the Parent, to which no objection was made, establishes that there was no disagreement articulated by the DOE to the claims raised and the assertions made by the Parent in his request for an impartial hearing, and in the presentation of his case at the hearing. There is as much evidence that the DOE agreed with the Parent’s position as there is that the DOE did not.
The DOE remained silent in that regard although it had the opportunity to take a position, to oppose the Parent’s position, or to otherwise actively participate in the hearing process.
THE PARENT’S CASE
was ’s teacher at beginning in January 2017. She is in the and there are approximately students in the class with similar learning profiles. Mr. described as
.
. When she first
started, . Mr. described the methods used in his class, including . To address , Mr. provided
with
. (T. 17-22; 27-28) Mr. often met with outside of class, during her sessions, for example, to provide . (T. 22-23) Mr. collaborated on a regular basis with ’s teacher, which also helped with her . (T. 22; 24) Mr. explained his use of the ,
.
. (T. 27;
Parent’s Exhibit J) Mr. confirmed the progress that he has observed in several deficit areas during the course of the school year, since enrolled at . (T. 22;
24; 25; 26-27; Mr. testified that the program and the at definitely benefit and he believes the placement is appropriate. (T.28-29)
is ’s teacher at . She meets
with , and and . She
explained that
. In the ,
; if needed, they can
. During the
, the focus with is
. Ms. explained that she collaborates with the . (T. 35-37) Ms. described
as
. (T. 38) is in a class of approximately . (T. 39) Ms. described how ’s deficits manifested in different areas and the methods and strategies used to support her. (T. 39-46) She stated that absolutely benefits from the , since she can receive the she needs, and that the program is a necessary component in order for to benefit from . Ms.
believes that ’s placement at with the program is appropriate. (T. 46-48)
has been ’s teacher for since
January 2017. It is a class of students in which is able to receive (T. 56-57)
.
. . Mr.
described the methods he has used to address these deficits, in addition to . Even in a class of students,
.
. . Mr.
described how has benefitted from being in his class and the progress he has observed in Case No. 165699
(T. 60-65) Mr. collaborates with Ms.
and believes that is appropriately placed at with the program. He explained that the program has been critical for her and the progress she has made. (T. 66-68)
has been ’s teacher since January 2017. There are students in the class. Mr. explained that it is the and that . He uses a approach with , as well as , among other techniques. Mr. explained that when she first entered the school. She made progress in
. Her , from
, to , to
, were addressed one-on-one by Mr. through
. (T. 77-83) Mr. described ’s progress
and believes that , with the program, is appropriate for (T. 91)
is ’s father. He explained that
. In October 2016, the school suggested looking at other schools for her for the next school year. However, since the school also indicated that the current school year was going to become more complex and independent-based, and preparatory for , she should be transferred sooner, rather than continuing to struggle in an inappropriate program. (T. 69-71) Following her enrollment at , . Mr. . stated that absolutely needs the program and that the are essential.
has been a “very good match” for ’s needs.
(T. 71-73)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The central purpose of 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 Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.
Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement 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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
The DOE has failed to offer a FAPE to for the 2016-2017 school year.
The DOE has not asserted that a FAPE was offered and has not challenged the Parent’s correspondence, testimony, or argument in any way. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.
The Parent has the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.
3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the Parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000])
“The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The Parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])
The DOE has not challenged the appropriateness of the program at for for the 2016-2017 school year. No evidence has been offered to dispute the testimony of the educational professionals who have worked with , or the testimony of Mr.
As described above, there was no position taken or argument presented with regard to the appropriateness of the Parent’s placement.
I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with , and who provide direct services to her, have all determined and agree that ’s program, including the program, was appropriate for for the 2016- 2017 school year. Mr. , Ms. , Mr. , Mr. , and Mr. .
provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The entire program, including the component, was reasonably calculated to allow to make meaningful progress and to address her individual needs. In fact, she made meaningful progress through her participation in the program.
The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.
Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s repeated, yet futile, requests for the DOE to conduct a review in order to create a program to provide with appropriate special education services. Despite the Parent’s efforts, the DOE did nothing. The DOE failed in its obligations to There is no basis on which to reduce or modify the remedy for the Parent.
ORDER
1. The DOE failed to offer a FAPE to for the 2016-2017 school year.
2. The Parent’s unilateral placement of at , with the program, was appropriate for the 2016-2017 school year.
3. There are no equitable considerations which would reduce or bar an award of reimbursement.
4. The DOE shall reimburse the Parent for the full cost of tuition and fees paid to for ’s enrollment for the portion of the 2016-2017 school year for which she was enrolled, in the amount of . Reimbursement shall be made immediately upon the Parent’s submission of proof of payment.
Dated: October 4, 2017
AMY LYNNE ITZLA, ESQ.
Impartial Hearing Officer ALI:
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 Exhibits
Exhibit Date Description Pages
A 3/20/17 Corrected Hearing Request 6
B 3/10/17 Hearing Request 6
C 3/2/16 Parent Letter to CSE 2
D 4/29/16 Parent Email to CSE with 1
attachments/evaluations
E 4/29/16 Parent letter to CSE 2
F 11/7/16 Parent letter to CSE 2
G 12/6/16 Parent Letter to CSE 23
H 6/22 and 6/24/15 Assessment Report 25
by
I 4/16 and 4/17/16 Assessment Report 12
by
J 4/17/17 Affidavit 4
K 2016-2017 Class Schedule 1
L 3/8/17 3rd Quarter Report Card 1
M 12/7/16 Enrollment Contract 4
N 5/10/17 Tuition Affidavit, 1
O Undated Program description 2
P 3/22/17 DOE CSE Meeting Notice 1
Q 4/5/17 DOE CSE review meeting minutes 4