NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 173248
NYS Identifier Number: Student’s Name: Date of Birth:
Region:
Hearing Requested By: Parents
Date(s) of Hearing: July 22, 2019
Actual Record Close Date: June 16, 2020
Hearing Officer: Amy Lynne Itzla, Esq.
FINDINGS OF FACT AND DECISION
INTRODUCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding R.R. The hearing was convened at the written request of the Parents by letter dated April 30, 2018, and amended by letter dated June 18, 2018.
(Exhibit A) A hearing was held on July 22, 2019, at the Department of Education (“DOE”) offices located at . 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 §200.5G)(5)Gi)]
BACKGROUND
isa -year-old girl who attended ( ) in the 2017-2018 and 2018-2019 school years. By letter to the DOE’s Committee on Special Education (“CSE”), dated , the Parents, through their advocate, notified the DOE, in part, that, since “the CSE has not convened an IEP meeting and has failed to create an IEP or offer a placement for [ for the 2017-2018 school year,” she was “denied a FAPE for the 2017-2018 school year,” and that the Parents “will be placing the student at ” for the 2017-2018 school year.
(Exhibit B) By letter dated , the Parents provided the DOE with the same notification for the 2018-2019 school year. (Exhibit C) By the amended letter dated , the Parents requested an impartial hearing regarding the two school years. (Exhibit A)
POSITIONS OF THE PARTIES
THE DOE’S CASE
The DOE chose not to present a case. The DOE did not submit documents (T. 7), did not make an opening statement (T. 11), did not present witness testimony (T. 13), did not object to the forty-three documents submitted by the Parents and admitted into evidence (T. 7), did not cross-examine the Parents’ three witnesses (T. 41; 55; 60), and did not make a closing argument (T. 64). The Impartial Hearing Officer asked the DOE’s representative, “Does the DOE have any position with regard to this child?” The response was, “No.” (T. 13) When asked does the DOE “have any challenge or objection to the Parents’ hearing request?,” the response was, “No.” (T.
14) This was the extent of the DOE’s participation in the impartial hearing.
THE PARENTS’ CASE
The Parents maintain that presents with multiple disabilities and requires intensive therapy and care. There is no dispute that the DOE did not conduct an JEP meeting or recommend a public placement for for the 2017-2018 and 2018-2019 school years. For the 2015-2016 and 2016-2017 school years, the requests for tuition funding to were settled. has remained a student at and, the Parents assert that this school continues to be appropriate for her. made steady progress and achieved tremendous gains in all areas during the 2017-2018 and 2018-2019 school years.
The Parents have always cooperated with the DOE and has in no way hindered the DOE’s ability to conduct IEP meetings or recommend educational placements.
is the and a . The school and “serves to integrate a variety of different methodologies into every student’s curriculum.” (T. 16-17) The school uses a combination of There is also a “heavy therapeutic piece” integrated into the program by a multidisciplinary team of therapists on staff. (T. 17) The school’s administrators also include . There is at least one licensed and certified special education teacher in each classroom. Students’ related services mandates are fulfilled by the school. The school has a . In addition, . The school is housed a spacious lunchroom; and .(T. 18-21)
During the 2017-2018 school year, the school had students enrolled and in the 2018-2019 school year, the school had students enrolled. classroom has a and a master classroom teacher.
described the class composition of . All of the and have similar needs. As part of the , data is collected on a daily basis and reviewed on a daily basis by the behavior analyst, the classroom teacher, and the one-to-one instructor.
participates in the three weekly team meetings for every student, in which all of those providing direct instruction and service to the child participate. is also in the classroom and in constant communication with all involved. (T. 22-24; 39-40) stated that . has been at the school September 2015. The DOE paid for tuition for the 2015-2016 and 2016-2017 school years. (T. 38-39) described diagnoses of , hot otherwise specified. She has “global developmental delays,” and is essentially a nonverbal student. She has gross-motor, fine-motor, visual motor sensory integration, focus, and attention delays and deficits. has a behavior intervention plan to target difficulty with compliance, with focus, and other behaviors. (Exhibit Q: 2017-2018 school year; Exhibit FF: 2018-2019 school year)
The plan was created by , the behavioral analyst and educational director, along with classroom teacher. A is conducted at the beginning of each year to identify the child’s and then the new individualized behavior intervention plan can be created. (T. 24-27) A multimodality approach is used to address needs. She uses a combination of . Activities of daily living are a big part of daily schedule. (T. 28-29) explained all areas on daily schedule for both school years. (T. 30-37; Exhibit I: 2017-2018 school year; Exhibit K: 2018-2019 school year) confirmed that there is at the school. (T. 35; 37) testified that behaviors improved during the two school years, as evidenced by the reduction of data points in the second year’s behavior intervention plan. There are fewer incidents of behavior. has made slow and steady, yet notable, academic gains.
stated that made “significant gains in all areas over the course of the past two years.” has made gains in her skills. (T. 27-29) explained that the tuition for the 12-month 2017-2018 school year was , which is inclusive of related services. The tuition for the 12-month 2018-2019 school year was also . These figures are indicated in the contracts signed by the Parents.
(Exhibit E: 2017-2018 school year; Exhibit G: 2017-2018 school year) The DOE provided transportation for during the two school years. The Parents have not made any payments toward tuition for the two school years, but understand that they are responsible for the tuition and that the school has agreed to wait for the outcome of the impartial hearing. (T. 37-38) is a licensed occupational therapist and the at and her duties include organizing and directly supervising the therapy team, as well as creating the protocols and programs related to therapy. also provides direct occupational therapy and provided direct therapy to during the 2017-2018 and 2018-2019 school years. She explained the sensory diet created and implemented for in the two school years. (T. 41-47; Exhibits R and GG) described improvements in all therapy areas during the 2017-2018 and 2018-2019 school years. (T. 48-55)
is mother. She testified that is diagnosed with and is . As a preschool student, received services through the DOE’s Committee on Preschool Special Eduction. When she aged out of preschool, the DOE recommended a placement for the 2015-2016 school year. Ms. _ visited the offered placement and did not find it to be appropriate for placed at and has attended the school to date. described the progress made during the 2017-2018 and 2018-2019 school years. described the school as very helpful to her as a parent. She attends meetings at the school, has contact with teachers and therapists, and has the opportunity to observe at school. (T. 55-58)
Ms. _ testified that the DOE did not contact her for IEP meetings for the 2017-2018 and 2018-2019 school years and did not offer a placement to for those school years. (T. 59)
stated that she cannot afford the tuition for , with an annual family income between and andatotalof children, but confirmed her understanding that she is obligated to pay it. (T. 58-59)
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 record clearly established that the CSE did not convene, did not develop IEP’s, and did not offer an educational program and placement to for the 2017-2018 and 2018-2019 school years. At the impartial hearing, the DOE did not even claim to have offered a FAPE to for the two school years. The DOE did not contest any of the evidence, testimony, or argument presented by the Parents. In fact, the DOE confirmed that it had no position with regard to and no challenge or objection to the Parents’ hearing request. (T. 13-14)
Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case. The DOE absolutely failed to offer a FAPE to for the 2017-2018 and 2018-2019 school years.
The Parents have 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 Parents' 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])
I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. and who are all very familiar with , and have personal and direct knowledge of her substantial delays and specific needs in all areas, agree that program was appropriate for for the two school years. They provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program and demonstrates that it was reasonably calculated to address individual needs and allow her to make meaningful progress. In fact, she made meaningful progress through her attendance at the school.
Again, the DOE has not challenged the appropriateness of the program at in any way. The evidence in the record fully supports the appropriateness of the program. The Parents’ witnesses were not even cross-examined. Their testimony stood unchallenged. As described above, there was no position taken or argument presented with regard to any aspects of the Parents’ request for the impartial hearing, including the appropriateness of the Parents’ placement.
I find that the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.
The final criterion for an award of funding or reimbursement is whether the Parents’ 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).
Obviously, having chosen to say nothing at the impartial hearing, the DOE did not offer any equitable consideration that would preclude an order in favor of the Parents. The record reflects the Parents’ cooperation with the DOE when requested to participate in past IEP meetings and demonstrates the Parents’ communication with the DOE. There is clearly no basis on which to reduce or modify the remedy for the Parents.
ORDER
l. The DOE failed to offer a FAPE to for the 12-month 2017-2018 school year and for the 12-month 2018-2019 school year;
2. The Parents’ unilateral placement of at was appropriate for the 12-month 2017-2018 school year and for the 12-month 2018-2019 school year;
3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,
4. The DOE shall directly pay to the tuition for for the 12-month 2017-2018 school year, in the amount of , and the tuition for for the 12-month 2018-2019 school year, in the amount of , Payment shall be made upon the submission of an invoice from to the DOE.
PLEASE TAKE NOTICE
Within 30 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nysed.gov/appeals.htm.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 22, 2019
Advocate Parent
Mother Parent
(via telephone) Parent
(via telephone) Parent
CSE Representative Department of Education
DOCUMENTATION ENTERED INTO THE RECORD
A. Impartial Hearing Disclosure (Submitted by parents) Student: I.H. Case #173248 Item Date Description | Number of Number Amended Impartial Hearing Request | 4 | 6/18/18
B. Notice of Unilateral Placement 17-18 [| 3 _| 6/18/17
C. Notice of Unilateral Placement 18-19 13 | 6/18/18
D. TMCIL Program Description 14 | Undated
E. TMCIL Contract 2017-2018 [3 __| 2017-2018
F. TANT TMCIL Affidavit 2017-2018 [1 |
G. TMCIL Contract 2018-2019 E _| 2018-2019
H. TMCIL Affidavit 2018-2019 [1 | 1/1/19
I. TMCIL Student Schedule 2017-2018 ! 1 | J 2017-2018 TMCIL Student’s Related Servic es | 1 | 2017-2018 2017-2018
K. TMCIL Student Schedule 2018-2019 [1 | L 2018-2019 TMCIL Student’s Related Services | 1 | 2018-2019 10/2/17 TMCIL Initial Evaluation Paycation ~ 1/15/18 TMCIL Midyear Evaluation Education 2018-2019 6 pages
0. IMCIL Final Educa |4 = tional Evaluation [14] 5/16/18 DOE
P. TMCIL Annual Goals 2017-2018 5 10/29/18 TMCIL fnitial Ce 1/21/19 TMCIL Mid cat Eval eatin z \ DD 5/20/19 TMCIL Final Educational Evaluation 2017-2018 | EE 2018-2019 TMCIL Annual Goals 2018-2019 4 | FF 9/15/18 TMCIL Behavior Intervention Plan 4 | GG 9/17/18 TMCIL Sensory Diet 2 | HH | 10/1/18 TMCIL OT Initial Assessment 5 4 pages
LL. | I | 1/15/19 TMCIL OT Midyear Assessment 3 | JJ 5/31/19 TMCIL OT Final Assessment 4 | KK 10/1/18 TMCIL Speech and Language Initial 6 Assessment TMCIL Speech and Language Midyear 3 | Assessment 1/03/19
MM. TMCIL Speech and Language Final 6 | Evaluation 5/28/19
NN. TMCIL PT Initial Assessment 10/5/18 5 pages
OO. TMCIL PT Midyear Progress Update 4 | 1/15/19
PP. §/31/19 TMCIL PT Final Progress Update 5 pages
QQ TN5/19 TMCIL
Footnotes
[14] Q 9/26/17 TMCIL Behavior Interv ention Plan 13 | R 9/15/17 TMCIL Sensory Diet ie | S 9/19/17 TMCIL OT Initial Asses sment 14 | T 2/15/18 TMCIL OT Midyear Assessment U 5/17/18 13 | TMCIL OT Final Assessment Vv 14 | 10/7/17 TMCIL Speech and Language Initial Assessment 3 Ww 1/30/18 TMCIL Speech and Language Midyear Assessment ! 3 X 5/30/18 TMCIL Speech and Lang uage Final 4 Evaluation ba 10/16/17 IMCIL PT Initial Assessment 7 2/1/18 TMCIL PT Midyear Progress Updat 5 e 4 AA 5/17/18 TMCIL PT Final Progress Update