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1
FINDINGS OF FACT AND DECISION
#185096 Hearing Requested By: Parent
Date of Hearings: 12/10/19, 12/13/19, 1/24/20, 3/9/20, 4/28/20, 5/4/20,
5/27/20, 6/12/20 and 6/29/20
Record Close date: August 24, 2020
Hearing Officer: James McKeever, Esq.
A P P E A R A N C E S:
, ESQ., Attorney
, Parent
, Interpreter
, Director of Special Education
For the Department of Education:
, ESQ.,
, Assistant Principal
, School Psychologist, NYC DOE
, Committee on Special Education (“CSE”) Social Worker-
NYC DOE
PROCDURAL BACKGROUND
On July 9, 2019, the parent filed the within Due Process Complaint (DPC)
alleging that the student was denied a free and appropriate public education (FAPE) by the Department of Education (DOE) during the 2019-2020 school year because the District’s proposed program did not meet the student’s academic and social-emotional needs (Exhibit A).
I was not appointed to this case until December 6, 2019, which I accepted at the request of SED and NYC Hearing Officer in order to eliminate the backlog of cases.
The issue of pendency was litigated over several dates.
The hearing concluded on June 29, 2020.
The parties submitted their post-hearing briefs on August 24, 2020.
Based on the alleged denial of FAPE, the parent is seeking tuition reimbursement and/or direct payment for the student’s unilateral placement at the , a private school for students with disabilities (“Private School”).
The DOE contends that the student was offered a FAPEP for the subject school year and that the parent’s request must be denied. The DOE also contends that the Private School was not appropriate and that the equities do not favor the parent (DOE brief).
Extensions of the Compliance date:
The parties requested extensions of the compliance date in order to complete the hearing and then to submit post hearing briefs. The orders of extension were served on the parties and the NYC Hearing Office.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The student is an who is a classified as a student with “multiple disabilities” under the IDEA (Exhibit 18). The student suffers from a brain injury and has benn diagnosed with cerebral palsy, epileptic seizure disorder and cortical vision impairment, inter alia (Exhibits D and I).
The student has global developmental impairments, which adversely affect his cognition, language and memory, as well as his attention, reasoning and motor abilities (Exhibits D and I).
The student is non-verbal and communicates with an assistive technology device (Exhibit D).
The student is non-ambulatory (Exhibit D).
In February 2019, the DOE contacted the parent to schedule a CSE meeting to develop an IEP for the 2019-2020 school year (Exhibit 24).
By letter dated February 19, 2019, the parent requested that the CSE convene an IEP meeting and asked that a DOE physician participate in person
(Exhibit K).
By letter dated April 23, 2019, the DOE scheduled a CSE meeting for May 16, 2019 (Exhibit 21).
By letter dated May 14, 2019, the parent requested that the meeting be rescheduled in order for the parent’s physician to complete the DOE’s medical forms (Exhibit 16).
By letter dated May 16, 2020, the DOE rescheduled the CSE meeting to May 30, 2019 (Exhibit 22).
The parent attended the meeting but then refused to participate in the CSE meeting because the DOE physician appeared by telephone and not in person (Exhibit 19, Tr. 138).
The CSE continued the meeting without the parent present (Exhibits 19 and 25, Tr. 138).
After reviewing the student’s records and evaluations, which included the student’s records from the Private School during the 2018-2019 school year, the CSE recommended placement in 12:1(3+1) class for all subjects on a 12-month basis with individual occupational therapy four times per week for thirty minutes; individual physical therapy five (5) times per week for thirty minutes; individual speech and language therapy five times per week for 6o minutes; an individual health and transportation paraprofessional and an iPad/Snap
Communication device. (DOE Ex. 19, Tr. 138, 141, 144, 148).
The DOE assigned the student to , which is a school (Tr. 225-230).
Thereafter, Prior Written Notice (“PWN”) and a school location letter were mailed to the parent on June 17, 2019 (Exhibit 20).
The parent did not visit the school to observe the proposed placement.
By letter dated June 21, 20198, the parent advised the DOE that the student would be placed at the Private School for the 2019- 2020 school year.
(Exhibit J).
The student’s program a the Private School consisted of an extended school day on 12- month basis, with the following:
. - 6:1:1 special education class;
. - Physical therapy – 1:1 – 5x/week, 60-minute sessions;
. - Occupational therapy – 1:1 – 4x/week, 60-minute sessions;
. - Speech/language therapy – 1:1 – 5x/week, 60-minute sessions;
. - Vision Education Services – 1:1 – 3x/week, 60-minute session;
and,
. - Parent counseling and training – 1x/month, 60-minute session.
(Exhibit D).
The student also had access to school nurse, as needed, and the use of an assistive technology communications device, as well as a 1:1 paraprofessional
(Exhibit D).
The student received special transportation services consisting of travel to and from home with a 1:1 travel paraprofessional, limited travel time, air conditioning, in a wheelchair-accessible vehicle (Exhibit D).
The student obtained an educational benefit at the Private School during the 2019-2020 school year (Exhibits L and M).
CONCULSION OF LAW
Two purposes of the Individuals with Disabilities Education Act (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 unique 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 v. T.A., 129 S. Ct. 2484, 2491 [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; Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404).
FAPE:
I find that the DOE failed to offer the student a FAPE for the subject school year because the proposed 12:1:3+1 class was too large to meet the student’s individual needs. Specifically, I find the ratio of 1 teacher to 12 students was not sufficiently restrictive to provide the level of services that this student requires to obtain an educational benefit from instruction (Endrew F. v.
Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). I find that although the DOE’s proposed placement included additional support staff, this fact would not compensate for the fact that there was only 1 teacher for 12 students (Tr. 150-
151). Thus, as discussed below, I find the a 6:1:1 class was appropriate to meet the student needs.
However, I note that the parent’s alleged procedural violations do not rise to a denial of FAPE because any defect with the DOE’s Meeting Notices and/or the PWN were de minimus.
I also find the fact that the DOE physician participated by telephone at the subject CSE meeting, and not in person, did not deny the student a FAPE because participation by telephone did limit the physician’s ability to review the student’s educational records and offer an opinion on placement, and because there is no requirement that the DOE physician was required to participate in person.
Additionally, I do not find that the level of related services that the DOE offered the student denied the student a FAPE in that the amount and frequency were appropriate to meet the students needs. Notwithstanding the fact that the Private School provided more.
Finally, I do not find that the DOE’s classification of the student with multiple disabilities, instead of a traumatic brain injury, resulted in a denial of FAPE because the classification did not determine the program (SRO No. 19-
117).
Private School Placement:
The evidence presented by the parent with respect to the student’s unilateral placement at the Private School demonstrates that the Private School was appropriate. Specifically, the evidence shows that the Private School provided direct and specialized educational instruction that was specifically designed to meet the student’s unique educational needs. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Additionally, I do not find that the fact that all the student’s at the Private School have a brain related disability, and thus a similar program, supports a finding that the student’s program is inappropriate. To the contrary, as referenced above, the student received intensive services throughout the school day, which were designed to address his significant delays. Finally, I do not credit the District’s assertion that the student only received 3 hours of academic instruction per week. As referenced in the record, the student’s related services providers pushed-in throughout the student’s academic program. As such, the student received academic instruction and his related services simultaneously. Accordingly, I find that the parent’s unilateral placement of the student at the Private School was appropriate. (Sch.
Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).
Equities:
A “major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the [school district] throughout the process to ensure that their child receives a FAPE.” See N.R., on behalf of T.R., v. The
Dept. of Educ. of the City Sch. Dist. Of the City of New York , 2009 WL 874061 (S.D.N.Y. March 2009). The Court looks at whether the parents obstructed the Department’s placement process or its ability to provide the student with a FAPE. See id. at 16. “In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement” (See SRO Decisions 05-030, 04-091, 04-049).
Here, the evidence shows that the parent provided the District with the requisite notice of the student’s placement at the Private School at least 10 days prior to actually enrolling the student at the Private school. Additionally, although the parent refused to attend the IEP meeting and did not visit DOE’s proposed school, I did not find that these facts obstructed the CSE process because the CSE held the subject meeting without the parent and developed the IEP at issue. Further, the fact that the parent did not visit the proposed school does not show bad faith because the parent disagreed with the IEP. As such, it did not matter where the IEP would have been implemented.
Thus, I find that the equities do not warrant a denial of tuition reimbursement in this matter (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]).
Accordingly, the parent’s request for tuition reimbursement and/or direct funding of the student’s placement at the Private School, with transportation costs, is granted.
ORDERED
The District shall reimburse the parents and/or directly pay the private school for the total cost of the tuition, related services and transportation at the Private School for the 2019-2020 school year.
Dated: Suffolk, New York
August 30, 2020
James McKeever
James McKeever, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 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.
The notice of intention to see review shall be served upon the school district not less than 10 days before service of a copy of the petitioner for review upon such school district, and within 25 days from the date from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the dated of the decision sought to be review. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8NYCRR279.2[b]). Failure to file the notice of intention to seek review is a waiver of the rights to appeal this decision.
Directions and sample forms can be found in the Office of State Review website:
www.sro.nysed.gov/appeals.htm.
Office of State Review website: www.sro.nysed.gov/appeals.htm.
District’s Exhibits:
1. Request for reevaluation, 12/13/18, two pages
2. Consent signed 1/24/19, 12/13/18, two pages
3. Notice of social history, 1/3/19, three pages
4. Notice of psycho-educational evaluation, 1/22/19, two pages
5. Notice of psycho-educational evaluation two, 1/28/19, two pages
6. Classroom observation, 3/12/19, two pages
7. AT evaluation, 4/17/19, four pages
8. Social history update, 2/9/19, two pages
9. Parent cancelation letter, 2/19/19, three pages
10. Consent for AT eval signed 2/8/19, 12/13/18, one page
11. Psycho-educational evaluation report, 2/9/19, three pages
12. AT evaluation and report, 4/17/19, four pages
13. Nursing referral, 5/8/19, 14 pages
14. Nursing referral, 5/8/19, 16 pages
15. WITHDRAWN
16. Advocate cancelation, 5/14/19, one page
17. cover letter, 5/29/19, two pages
18. IEP evaluation, 5/30/19, 26 pages
19. Events log, 12/7/18-07/24/19, 36 pages
20. Prior written notice and school location letter, 6/17/19, ten pages
21. Notice of meeting, first notice, 4/23/19, six pages
22. Notice of meeting, second notice, 5/16/19, six pages
23. Email regarding appointment preferences, 2/25/19, four pages
24. Affidavit in lieu of testimony, , 4/20/20, four pages
25. Affidavit in lieu of testimony for , 4/20/20, four pages
26. Affidavit in lieu of testimony for , 4/20/20, two pages
Parent’s Exhibits:
a. Due process complaint in impartial case number 185096, 7/8/19, four pages
b. Order on pendency by IHO in IHO case , 1/3/18, six pages
c. IEP for the 2017/2018 school year, 4/1/17, 35 pages
d. IEP for 2018/2019, 5/6/19, 46 pages
e. enrollment contract, 6/20/19, seven pages
f. program description 2019/2020 school year, undated, 15 pages
g. class schedule for 2019/2020, 10/15/19, one page
h. Transportation contract, 7/8/19, five pages
i. New York City DOE medical forms for 2019/2020, multiple dates, 16 pages
j. Ten-day letter, 6/21/19, one page Letter from Parent to
k. CSE 10, , requesting full committee annual review meeting for the 2019/2020 school year, 2/19/19, two pages
L. Progress report 11/8/19, 12 pages
M. Affidavit of , 6/29/20, three pages
N. Spanish affidavit of , 6/29/20, two pages
O. English affidavit of , 6/29/20, two pages