NY IHO #166651: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 166651

Student’s Name:

Date of Birth:

District: LJ Hearing Requested By: Parent

Date of Hearing: September 6, 2017

October 25, 2017

November 8, 2017

November 29, 2017

Actual Record Closed Date: February 2, 2018

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 6, 2017

ESQ., Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2017

ESQ., Attorney — Student

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2017

ESQ., Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2017

ESQ., Attorney — Student

_J — Student

(Via Telephone) — Student

Teacher, (Via Telephone) — Student

======-------------==-=--- Designee — DOE

Introduction — DOE

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a reimbursement case. A complaint notice was filed on June 28, 2017 (Ex. A), and an amended complaint notice was filed on July 17, 2017 (Ex. B). A pendency hearing was held on September 6, 2017, and I issued a pendency order. A hearing was held on October 25, 2017; November 8, 2017; November

29, 2017.

Overview

In this Decision and Order, I will briefly outline the positions of the parties and review some student history and will then move to apply a -prong analysis to this case, examining first whether the District met its burden to demonstrate the appropriateness of their program, second whether the Parent met her burden to demonstrate the appropriateness of the placement at Private School, and third whether equitable considerations favor the District or the Parent in this matter. In all matters, I find for the Parent.

Parent’s Position

In the amended complaint notice, dated July 17, 2017 (Ex. B), the Parent alleges that the District failed to provide the Student with a free appropriate public education (FAPE) for the 2017 – 2018 school year. The Parent is seeking tuition reimbursement for the Private School where she placed the Student, compensatory education, additional and/or makeup , an interpreter who speaks and understands special-education terminology to be physically present at all meetings, and translation of all documents concerning the Student’s education created during the 2017 – 2018 school year or that will be created in any future year.

District’s Position

The District conceded FAPE and did not present documentary evidence of witnesses. The District did conduct cross examination of Parent witnesses.

Student History

At the time the complaint notice was filed, the Student . He

was diagnosed with I I (Ex. M). The Student has and uses an (Ex.

W).

Issues

1. The District failed to provide the Student with a timely Individual Education Program (IEP) or school placement for the 2017 – 2018 school year.

2. The District excluded the Parent from the special education process by failing to provide her with adequate services at meetings and/or in the transmission of written documents regarding the Student’s education.

3. The District failed to appropriately evaluate the Student and failed to have sufficient evaluations to support the IEP recommendations.

4. There were substantive and procedural errors in the 2017 2018 IEP development process, meeting, and resulting IEP.

Analysis

A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim.

Floren e County S h. Dist. Four v. Carter. 510 U.S. 7 (1993); S h. Comm. Of Burlington

v. Dep’t. of Edu ., 471 U.S. 359, 369-70 (1985).

Prong I

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Edu ation, Hendri k Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Wal zak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F.

Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent S hool Distri t, 9 F.

Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE.

(Appli ation of a Child Suspe ted of Having a Disability, Appeal No. 93-9; Appli ation of a Child with a Handi apping Condition, Appeal No. 92-7; Appli ation of a

Handi apped Child, 22 Ed Dept. Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Edu . v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]).

The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the complaint notice. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Edu ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In this case the District conceded it failed to offer the Student a FAPE for the 2017-2018 school year.

Factual allegations in the complaint notice for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO

No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same).

Prong II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” S hreiber v. E. Ramapo Cent. S h. Dist., 700

F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

Gagliardo v. Arlington Cent. S h. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Edu ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City S h. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] iting Warren G. v.

Cumberland County S h. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child. Frank G. v. Bd. of

Edu ., 459 F.3d 356, 364 [2d Cir. 2006]. Parents learn about the unique needs of a handicapped child through first-hand knowledge, but parents may also rely on the experience of professionals.

The Private School

The Private School educates students

The program includes . The school offers related services

Progress

The Student is making progress in the Private School (see progress reports, Ex.

W). The Student’s Teacher from the Private School testified by affidavit that

Given the foregoing I find that the Parent has sustained the burden with respect to Prong II. At the same time, I acknowledge the point made by the Parent in her brief that the Private School was actually a pendency placement and thus the burden did not fall on the Parent.

Before proceeding to Prong III, I also make findings regarding and a note regarding services.

Recommendations

The Student has been making good progress with (see progress reports from Agency: Ex. U, Ex. V, Ex. X, and Ex. Y). The

) who is the of the Agency that provides L_J to the Student, testified by affidavit that the Student has made progress in , : Teacher’s Recommendations The Student’s Teacher also recommended that the Student continue to receive outside of school to reinforce what he is taught in school,

: Recommendations

The Private School and the services are consistent with what the recommended for the Student in his evaluation. He

specifically recommended that the Student

. The

Student’s parents should also be provided with ongoing parent support and training in the use of these techniques. In addition, he recommended that the Student receives and (Ex M-13-14).

I find the Parent’s request for continued to be wholly consistent with the recommendations given throughout these proceedings. Given the forgoing support in the record, I agree that ~ - - _ J services are currently appropriate for the Student, and I adopt the number of that the current recommended.

Services

The parent complains she was denied appropriate services. While I do not make a specific finding concerning this point I admonish the District to follow the Federal State and their own regulations concerning this point. The

Teacher testified in her affidavit that the Student’s Parent needs the assistance of an interpreter to have substantive conversations about the Student’s education, goals, and progress (BB – 8).

Prong III

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 parents where equitable considerations support the parents' claim (Floren e County S h. Dist. Four v.

Carter, 510 U.S. 7 [1993]; S h. Comm. of Burlington v. Dep't of Edu ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In this case I do not find any reason to reduce reimbursement.

It is therefore ORDERED

- The District shall provide reimbursement to the Parent or payment to the Private School for any outstanding tuition or fees incurred for the 2017-2018 school year pon the presentation of a proper invoice for same.

- This matter be remanded to the Committee on Special Education with a direction to authorize and implement the following program at the Private School where the Student currently attends:

a. :

b. ;

c. ;

d. related services in ;

e. related services in ;

f. ;

at customary rate.

Dated: February 13, 2018

MARTIN J. KEHOE III, ESQ.

Impartial Hearing Officer

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 nder 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

New York City Department of Education, Impartial Hearing Decision

Issues