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FINDINGS FACT AND DECISION
Case Number: 167905
Student’s Name:
Date of Birth:
District: LJ Hearing Requested By: Parent
Date of Hearing: August 24, 2017
December 11, 2017
Actual Record Closed Date: January 22, 2018
Hearing Officer: James P. Walsh, Esq.
NAMES AN TITLES PERSONS WHO APPEARE AUGUST 24, 2017
Attorney Associated with the Parent
, Attorneys for Parent
New York City Department of Education and DOE
District Representative
NAMES AN TITLES PERSONS WHO APPEARE ECEMBER 11, 2017
Attorney Associated with the Parent
, Attorneys for Parent
Mother of Student Parent
Parent (by phone)
Parent (by phone)
Parent (by phone)
Parent (by phone)
New York City Department of Education and DOE
District Representative
This proceeding was initiated by the filing of a Due Process Complaint Notice, dated August 9, 2017, by the on behalf of Parent, which Complaint was received by the New York City Department of Education’s Impartial Hearing Office on August 10, 2017. The undersigned was appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over the matter bynotice dated August 10, 2017.
The matter of , (hereinafter referred to as “Student”), first came before me for determination, in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1412 et seq. on August 24, 2017, at a hearing held to determine the Pendency program to which Student was entitled to receive pending the completion of this administrative hearing. An Interim Order on Pendency was issued on August 25, 2017. Thereafter, on December 11, 2017, a hearing on the merits was conducted. At the conclusion of proceedings on December 11, 2017, both parties requested the opportunity to submit Post-Hearing briefs. Those requests were granted upon the condition that such be submitted to the Case Manager no later than the Close of
Business on January 19, 2018. Parent’s counsel has timely submitted a Closing Memorandum, which has been read and considered. District’s Representative submitted nothing. The Actual Record Close Date was January 22, 2018.
Parent’s Complaint (Exhibit A) alleged that District and the New York City Department of Education failed to provide Student with a free, appropriate public education (FAPE) for the 2015-2016; 2016-2017; and the 2017-2018 school years. As a remedy for such claimed failures, Parent seeks a determination requiring District and the New York City Department of Education (DOE) to place Student at the and to be responsible for the payment of the tuition thereat, as well as the provision of , at an enhanced rate of pay. Parent’s Complaint also sought relief in the nature of an Order requiring District and DOE to fund an Independent Evaluation, but such request was withdrawn by Parent’s counsel (T.R.26)
Student is presently of age, having been born on . According to the testimony of Witness , Student has been diagnosed as having , (T.R.36). n
(Exhibit P and Exhibit D).
Student was identified by District’s Committee on Preschool Special Education (CPSE) as a and attended for the 2014-2015 school year. In a Progress Report (Exhibit W), it was reported that Student had made much progress, although still The results of the administration of the in April of 2015 indicated that
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.
At the meeting of District’s Committee on Special Education (C.S.E.), conducted on May 1, 2015, the C.S.E. developed an Individualized Education Program (I.E.P.) for Student for the 2016-2016 school year (Exhibit R). Student was classified as having an and recommended to receive with certain Related Services (Exhibit R). Student attended a for the 2015-2016 school year. On November 1, 2015, Student was observed by ,a , whose Report (Exhibit D) was shared with District’s C.S.E. at a meeting held on December 23, 2015. The I.E.P. which emanated from that meeting (Exhibit P) classified Student as . Student continued in his placement at a for the 2016-2017 school year. Parent
testified that at every meeting of the Committee, Parent had requested that Student be afforded aprogram with (T.R.141).
On November 10, 2016, Dr. , who identified herself as having dual-board certification in and (T.R. 29), conducted a visit to Student’s home. Her Report (Exhibit G) states that the visit lasted one hour, with more than half of that time spent in parent counseling and education. Dr.
’s Report described
. Dr. ’s recommendation was that Student’s school program should be grounded in the principles of . The Report also stated that Student would benefit from .
On December 1, 2016, District’s C.S.E. met again. While the Committee had been provided with a copy of Dr. ’s Report, it continued its classification and recommended program (Exhibit T). Student continued to attend his program for the 2016-2017 school year Parent commenced this Due Process proceeding on August 10, 2017, contending that District failed to provide Student with a free, appropriate public education during the
2015-2016; 2016-2017; and 2017-2018 school years. Parent’s Due Process Complaint requested the issuance of an Order on Pendency; the funding of an Independent Educational Evaluation; an Order that the DOE pay for ; and an Order that District pay for Student’s at . An Interim Order
on Pendency was issued on August 25, 2017 (I.H.O. Exhibit I) which found that Student’s Pendency placement, per the agreement between Parent’s counsel and the District Representative, was at Student began attending on September 25, 2017 and remains in such pendent placement. Parent has withdrawn her request for an Independent Educational Evaluation. There remains for determination Parent’s request that the department pay for Student’s attendance at and that District be responsible for the payment of .
Parent’s request that the Department of Education pay for Student’s attendance at raises interesting issues. It has been established that Educational Agencies may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the Educational Agency were inadequate or inappropriate, the services selected by the parent were appropriate and equitable considerations support the parents’ claim (School ommittee of the Town of Burlington v. Department of Education, 471 U.S. 359; 85 L. Ed. 2d, 385; Application of a hild with a Disability, Appeal No. 01-
052). For years, this “equitable” remedy was available only to those families fortunate enough to have the wherewithal to undertake the considerable expense of funding the unilateral educational placement and, thereafter, seek reimbursement for such expenditure from the district. In 1998, in a proceeding entitled onnors v. Mills et al, 34
F. Supp 2d 795 (N.D.N.Y.), the Court addressed this specific defect. Citing the decision rendered in Susquenita Sch. Dist. v. Raelee, 96 F.3d 78 (Third Cir. 1996), the Court ruled that:
“Once the Burlington prerequisites relative
to a non-approved private school are met, and aparent shows that his or her financial circumstances eliminate the opportunities for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.”
While I recognize that the District is not within the territorial jurisdiction of the Northern District of New York and that Impartial Hearing Officers are not bound by pronouncements of the Third Circuit, I find the rational of the decisions of both courts compelling. Indeed, such case has been cited and quoted on many occasions since it was first delivered (See Mr. and Mrs. A v. New York City Department of Education – 769 F.
Supp. 2d 403 [S.D.NY. 2011] and the rationale expressed therein). Parent does not have the where-with-all to fund Student’s placement (T.R.112). Thus, Parent’s situation comes directly under the purview of onners – except that it is unclear if charges any tuition for which there could be either reimbursement or direct pay. I note in its Program Description (Exhibit I), states that “ ”. Indeed, it is unclear if a parent could unilaterally place a student at , as ’s letter accepting Student (Exhibit C) states that is can afford Student an appropriate education and has a seat available “once his case is deferred to the Central Based Support Team”. However, to the extent – if any – that such is necessary, I shall briefly review the Burlington Prerequisites.
Burden of Proof
Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and arter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and arter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, Parent’s entitlement to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the educational facility for which Parent seeks approval.
The burden of establishing such appropriateness rests upon Parent (N.Y.S. Education Law §4404). Should Parent fail to establish the appropriateness of the requested facility, Parent’s request for relief must be denied. If the requested educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parent.
District, in this proceeding, called no witnesses, offered no exhibits and waived its right to an opening Statement. Thus, while I am impressed with the extensive and comprehensive review conducted by District’s Committee in preparing the Individualized Education Programs that were introduced by Parent (Exhibits P, R and T), it is my finding and determination that District has failed to sustain its burden of establishing the appropriate of any of the programs proffered to Student during any of the school years at issue in this proceeding.
The second prong of the Burlington Prerequisites requires that Parent sustain her burden of establishing the appropriateness of for Student. Parent offered the testimony of Witness , the at . Witness described in detail the program offered at for , noting that it employed
11 11
(T.R. 62). Witness
reviewed in detail the Program Description as provided by in Exhibit H. Witness
testified that Student is currently in a class with a staffing ration of and also receives (T.R. 78), and is appropriately placed with peers. While, according to Witness
- - - ,~ - L J - - L ~ ~ - - -
, some progress is seen (T.R.90).
It is my finding and determination that Parent has sustained her burden of establishing the appropriateness of .
As to Equitable Considerations, I find nothing in Parent’s actions that would require any negative ruling in this proceeding. Parent has attended all meetings held by District’s C.S.E. to discuss Student’s needs or programs and has actively participated, making requests for she believed were best for Student.
It is, then, my determination that Student shall remain in his program at fore the remainder of the 2017-2018 school year. If there Are charges to be paid to for Student’s attendance at the facility, the District and the New York City Department of Education shall pay them.
Parent has also requested that the Department of Education “pay _ L _ , or other qualified provider should become unavailable, for the cost of providing Student with based on the December 2016 IEP at an enhanced hourly rate according to proof”. (Exhibit A).
Parent presented the testimony of , who described herself as a with a certification (T.R.121). Witness has been contracted with - ~ for approximately seven years (T.R.124), in which role she assesses students, makes recommendations and becomes involved with Committee meetings developing programs (T.R. 126-127). Witness testified that she had observed Student in November of 2016 but had been unable to assess Student because of n
. Her Report (Exhibit D) noted that and recommended consisting of
. Dr. ’s
Report (Exhibit G) contained, among its recommendations, that Student would benefit from , which recommendation Dr. supported in her testimony, noting that Student was still “ ” (T.R. 48).
While District has failed to establish that it offered Student an appropriate program during the 2015-2016 and 2016-2017 and 2017-2018 school years, such does necessarily result in a determination that Parent is entitled to whatever program she proposes. Parent has the obligation of establishing that her proposed program is appropriate. Courts have ruled that FAPE ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (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).
It is my finding and determination that an award of any to Parent is unnecessary and unwarranted. I note that ’s program runs from to , which means that Student receives each school day. Were Parent’s request approved, Student’s school day would be followed – each and every school day – by
. is, in my
opinion, more than a year old can profitably endure.
Parent’s Witness , in describing the program Student would receive at , confirmed that its program is a program. Witness
described the methods would employ in dealing with Student’s deficits. Witness
confirmed that had personnel trained to deal with (T..95), as well as (T.R. 90). Indeed, Witness opined that , standing alone, was sufficient to meet Student’s needs (T.R.100).
Therefore, Parent’s application that Student be awarded
, shall be denied.
Parent’s Closing Memorandum cited testimony (T.R.148) regarding the provision of by Indeed, testimony was received into evidence from Witness regarding her opinion that such were required (T.R.148). However, there is nothing in Parent’s Due Process Complaint seeking such service. As such was not an issue raised in Parent’s Due Process Complaint, it will not be considered (8 NYCRR 200.5(j)(1)(ii)).
ORDER
Based upon the above, n and the New York City Department of
Education are
HEREBY ORDERED to amend Student’s Individualized Education Program for the 2017-2018 so as to designate as Student’s placement for the 2017-2018 school year; and it is
FURTHER ORDERED that and the New York City Department of Education pay to such tuition, if any, that charges for the education of Student at such facility for the 2017-2018 school year; and it is
FURTHER ORDERED that Parent’s application for the provision of be, and the same hereby is, denied.
Dated: February 12, 2018
JAMES P. WALSH
Impartial Hearing Officer
JPW:
PLEASE TAKE NOTICE
The parent and/or the New York City epartment of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education epartment under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with isabilities Education Act.
irections and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO RECORD AUGUST 24, 2017
No.: # of Pages Description: Offered by:
A 7 Parent’s Due Process Complaint Notice, Parent
dated 8-9-17
B 17 Student’s I.E.P. as developed by District’s Parent
C.P.S.E, dated 5-19-15
C 1 Letter of Acceptance by , dated 8-2-17 Parent
DOCUMENTATION ENTERED INTO RECORD DECEMBER 11, 2017
No.: # of Pages Description: Offered by:
D 2 Report of Assessment by , dated Parent
11-1-16
E 3 Report of Assessment by , dated Parent
11-21-17
F 1 Provider’s Affidavit and Verification of Parent
I byI ,
,
, sworn to on 11-24-17
G 7 Report of Parent
Follow-Up Visit, dated 11-10-16, by ,
H 1 Publication by entitled: Parent
I 1 Program Description by , undated Parent
J 1 Student’s Attendance Record at for period Parent
9-25-27 through 11-25-17
K 5 Progress Note from , dated 11-20-17 Parent
L 3 Assessment of Parent
, dated 11-3-17
M 15 Parent
N 2 as prepared by Parent
O 1 Letter to – – from Parent
Attorney for Parent, dated 11-14-16
P 33 Student’s I.E.P. as prepared by District’s C.S.E., Parent
dated 12-23-15
Q 5 , dated 12-17-15 Parent
R 20 Student’s I.E.P. as prepared by District’s C.S.E., Parent
dated 5-1-15
S 3 Student’s Report Card as Issued by Parent for the 2015-2016 school year
T 20 Student’s I.E.P. as prepared by District’s C.S.E., Parent
dated 12-1-16
U 3 Resume of Parent
V 3 Educational Annual Progress Report by , Parent
dated 4/30/15
W 3 Educational Progress Report by , Parent
dated 1-23-15
OTHER DOCUMENTATION ENTERED INTO RECORD
No.: # of Pages Description: Offered by:
* Parent’s Closing Memorandum IHO