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FINDINGS OF FACT AND DECISION
Case Number: 185480
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: October 11, 2019
November 12, 2019
January 9, 2020
February 10, 2020
February 24, 2020
Record Close Date: March 27, 2020
Hearing Officer: Linda Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 11, 2019
Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 12, 2019
Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 9, 2020
Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 10, 2020
Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 24, 2020
Parents
Parents
Parents
DOE
On July 31, 2019, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of the Student. The hearing was convened at the request of the parent that was received on July 29, 2019. Hearings were held on October 10, 2019, November 12, 2019, January 9, 2020, February 10, 2020 and February 24, 2020. The parties moved to extend the compliance dates during the course of the hearing (Exhs. /-V;X7; Tr. at 40).
The parties presented their cases on February 24, 2020. The parties were granted until March 19, 2019 to submit post-hearing memoranda (closing statements and legal references). The District resubmitted the complete closing statement. The parties were given an opportunity to submit reply briefs on March 27, 2020. The parents submitted their reply brief and the District declined to do so. Therefore, the current record close date is March 27, 2020 and the compliance date for issuing a decision is April 10, 2020.
The hearing was requested by the parents to challenge the May 10, 2017 review and recommendation of the and to obtain funding for the a private entity lacking New York State Education Department approval. The parents seek a Final Order for the tuition reimbursement for the program at for the 2017-2018 school year. The parent submitted for in the amount of (Exh. N). The The parents request reimbursement for cost of tuition for in the amount of for the 2017-2018 school year (Tr. at 112;Exh. B at 2).
The parents claim that the DOE failed to offer a free, appropriate public education ("FAPE") and that the May 10, 2017 IEP was procedurally and substantively defective and that the DOE failed to offer an appropriate program as the changed the program from an without parent participation. The parents assert that Further, the parents claim that the 2017-2018 school year provided for the Student at is appropriate and that equitable considerations warrant tuition reimbursement for (Exh. B at 3; X/7 at 1; X// at 1).
By letter dated August 21, 2017, the parent rejected the placement and informed the DOE of her intent to enroll the Student in for the 2017-2018 school year and seek tuition reimbursement for (Exh. A at 1).
After the hearing commenced the District sought to dismiss on statute of limitation
BACKGROUND
The Student is a who had attended for the 2017-2018 school year in the On June 16, 2016, the The indicated that an IEP dated May 9, 2016, recommended an ICT class and related services of occupational therapy ("OT"), physical therapy ("PT") and speech and language therapy (" ") and a approach and had received the related services of OT, PT. and that the OT and PT providers were working on The parent indicated by Affidavit that the Student was diagnosed
On June 20, 2016, a evaluation was conducted by an evaluator who assessed his on the The evaluator used the
On May 10, 2017, the developed an IEP and classified the Student with Other Health Impairment and recommended that the Student be placed of and receive related services of individual OT twice per week for 40 minutes per session; individual PT twice per week for 40 minutes per session; individual once per week for 40 minutes and once per week for 40 minutes in a group of 3 and The IEP indicated that
On May 19, 2017, the School Location Letter recommended a placement (Exh. 2).
On May 19, 2017, the Prior Written Notice indicated that the Student was placed in
On August 21, 2017, the parent wrote to to express her and stated that the meeting recommended a program that was not based on
On September 12, 2017, the Ten-day Notice Determination Letter indicated that the DOE received the parent's letter of August 21, 2017 and noted that the parent disagreed with and sought to at the NYC DOE expense for the 2017-2018 school year and that the DOE determined that the Ten-day Notice of was not appropriate for settlement (Exh. 4 at 1).
On various dates in February and March 2018, a Evaluation was conducted by Disorder (Exh. K. at 11,13).
On October 21, 2019, the DOE attorney in the Office of General Counsel notified the parent that the DOE would like to resolve the instant due process complaint (Exh. 5 at 1).
THE DOE'S CASE
The District's presented no witnesses and did not contest any allegation contained in the due process request in that no IEP was provided to the Parents for the 2017-2018 school year and that the proposed placement was not barrier free and asserted that it was not presenting a case and presenting no evidence regarding the parents' claims that there was a denial of FAPE both to program and placement. With regard to the appropriateness of the parents’ placement (Prong 2) the District asserted that the was not appropriate for reasons outlined below. With regard to Prong 3 the District made no claims but for those raised in the
THE PARENTS' CASE
The parent and the Assistant Head for the upper school at testified and provided Affidavits in support of the parents' claim for tuition reimbursement for for the Student for the 2017-2018 school year as discussed below. The parent testified as to progress and as to the reasons she rejected the testified that she worked closely with the student in the Specialized Program during the 2017-2018 school year and that there were in the was tailored to students who needed a larger amount of related services than the She stated that the Student was placed in the Specialized Program because She stated that there was a special education teacher in The Assistant Head stated that the She stated that the teachers had She further opined that the Student was appropriately placed at as his
FINDINGS OF FACTAND CONCLUSIONS OF LAW
Claims
The District asserted that pursuant to the applicable the consideration of claims and the relief was time-barred (Exhs. VIIT; X at 3-9). The District asserted that the "Parent confirmed that after the in May 2017, it was clear that The parent stated that she received an offer in May 2017 for the proposed placement that was about
The District claimed that "the Parent knew the recommended placement school was inappropriate the day of the school visit, if not earlier" (Exh. X at 5). Therefore, the District asserted that "the DPC was not filed until July 29, 2019, more than two years later and thus is untimely" (Id.).
The District further asserted that "the Parent knew or should have known that the program was not appropriate at the IEP meeting on May 10, 2017. See, Application of a Disability, Appeal No. 07-116 (finding that the parent knew or should have known of the basis of parent’s claims two years from the date the IEP review was held or when the parent received the IEP)" (Exh. X at 6-7).
The parents asserted in their response that "at least two actions, or inactions /irst, that no IEP was provided to the Parents prior to the beginning of the 2017-2018 school year and second, that [the Student] could not attend the public school recommended for him because it was not accessible to him" (Exh. X7 at 1).
The District argued that the failure to provide a copy of the IEP prior to the school year did not "mpede[ ]' their 'opportunity to participate in the decision making process.” mt R.E., 694 F.3d at 190 (internal quotation marks omitted).' N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 586 (S.D.N.Y. 2013)" (Exh. X at 7)" and further argued that "not receiving a copy of the IEP is not a denial of FAPE and it is not when the statute of limitations accrues, even if it were shown that the Parent did not receive a copy of the IEP" (Id.).
However, the parents asserted in "N.K. v. New York City Department of Education, 961 F. Supp, 2d 577 (SDNY 2013) the parents had received the IEP 'HO and SRO found that the DOE did indeed mail the IEP to ... parents, a well-supported finding this Court adopts.' Jd. at 586. There is no such claim in this instance by the DOE — in fact, the DOE presented no testimony, witnesses or documents to challenge this claim. In fact, the DOE declined to present any prong one case. See Tr. at 58; Tr. at 71-72; Tr. at 81" (Exh. X7 at 2).
I further note that in dicta in Bd. of Educ. v. C.M., 744 Fed. App’x 7, 9-10 (2d Cir.
2018) it was noted the date the parents received the IEP may be their claim-accrual date. In this case I find that the parents never received a copy of the IEP and that without the physical copy of the IEP I find that the parents were not aware of their claims regarding the deficits of the May 10, 2017 IEP.
The parents asserted their concerns about the program as well as the placement in their ten-day notice (Exh. A).
The parents further asserted that per "20 U.S.C.§1412(a)(10)(C)(i11)(1)(bb), parents are statutorily required to give a school district ten business days’ notice of their dissatisfaction with the special education program and placement offered by the district as well as their desire to enroll their child in a private school before withdrawing the child" (Exh. X7 at 2).
The parents further asserted and I agree "it is not until the District fails to respond to a parents' concerns stated in a ten-day notice that these concerns become more than merely speculative and accrue as a cause of action. As such, the claim in the instant matter did not accrue until ten days after the Parents notified the DOE that the school building was not accessible to [the student] and the DOE failed to cure this issue. This day falls on or around September 7, 2017, the first day that the placement was intended to be implemented" (Id.).
I find therefore that the parents’ claim did not accrue until September 7, 2017 and I find the due process complaint was dated July 29, 2019 and I find the due process complaint was within 2 years of September 7, 2017. Therefore, I deny the District's motion to dismiss.
Parent's request for reimbursement
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances...." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (/d. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR 200.4(d)(2)(1), (111), (v). The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations.
For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s 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. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]).
Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3 ][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; ZH. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¥ 234 (App. Div. 2011).
Prong 1
The District did not defend Prong | of the Burlington/Carter test for reimbursement and did not contest any allegations contained in the due process complaint including allegations concerns program and placement (Tr. at 81).
Therefore, I find the District had failed to establish that FAPE was provided for the 2017-2018 school year .
Prong 2
When a public school system has failed to provide FAPE, as is the case here the program and "services chosen by the parent are "proper under the Act" if the education provided is "reasonably calculated to enable the child to receive educational benefits." Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2TM Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. "Ultimately the issue turns on whether a placement...is 'reasonably calculated to enable the child to receive educational benefits.' [internal citations omitted] ...", Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the supported by such services as are necessary to permit the child to benefit from instruction. Jd. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
Testimony adduced at the hearing clearly demonstrates that was I credit the testimony and Affidavits and evidence and find that . I find these deficits were addressed at due to the I find that placed an emphasis the acquiring on
I find that the Student was provided with appropriate
I find that was able to meet
I find the accommodations of
I find the special education techniques used at addressed the Student's specific special education
Accordingly, I find that met the Student's The District made only 2 claims with regard to the appropriateness of the parents' placement: (1) the Student did make academic progress and (2) that did not meet the and that the witness did not establish academic progress (Exh. X at 13).
As to progress:
Although progress is a relevant factor, Gagliardo, 489 F.3d at 115, a finding of progress is not required for a determination that is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364.
As discussed above I find that the Student made meaningful progress in a variety of areas. I credit the Affidavit of and that he progressed
As to Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; MS.,
231F.3d at 105 and "the totality of the circumstances" must be considered in determining the appropriateness of the , Frank G., 459 F. 3d at 64. Under Frank G. and Gagliardo and the is a not perfect placement. WS.. ex rel SS. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000). I find that was appropriate to meet the Student's special education needs In the circumstance here even if did not meet the requirement, that fact did not render inappropriate.
Evidence adduced at the hearing established that I find these issues were addressed by . Testimony adduced at the hearing clearly demonstrates that provided . The parents asserted that was appropriate because the Student had made progress at (Exh. Q at 5). The evidence presented from
I credit the testimony and I find that I credit the testimony and I find the Student was grouped appropriately for his development at (Tr. at 101). Accordingly, I find that were met at . Therefore, I find that the parents met their burden regarding of the Student at for the 2017-2018 school year and the program at met the Prong 3 I find that the District did not raise any Prong 3 claims other except as related to the claim (Tr. at 81). As discussed above I find no basis to deny or limit the parent's claims based on Further, the evidence shows that the parent cooperated with the and appropriately and timely notified the district as to parental concerns (Tr. at 88;Exhs. A-B).
Tuition reimbursement may be reduced or denied if the parent (1) did not provide notice of the either at the most recent meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his "removal", (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(Gai1). I find the parent informed the that she intended to enroll the Student at for the 2017-2018 school year when no appropriate program/placement was offered (Exh. A) after the most recent meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii).
In this case, I find that the parents fully cooperated with the district to the best of their ability. I credit the parent's affidavit and I find that the parents would have considered a public school placement and I find that the parent visited the proposed placement (Exh. Q at 2, 4).
Therefore, I find equitable considerations do support the parents’ claim for full tuition reimbursement for
ORDER
Therefore, it is hereby ordered that the DOE reimburse the parents for cost of tuition for in the amount of for the 2017-2018 school year.
Dated: April 9, 2020
Impartial Hearing Officer
PLEASE TAKE NOTICE
The Parents 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 ON OCTOBER 11, 2019
vf Decision on Extension, 10/11/19, Ip. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 12, 2019
IT Decision on Extension, 11/12/19, Ip. THO
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 9, 2020
Ill Decision on Extension, 12/12/19, Ip. THO
IV Decision on Extension, 1/9/20, Ip. THO
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 10, 2020
V Decision on Extension, 2/10/20, Ip. THO
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 24, 2020
Notice of intention to , 8/21/17, 2 pp.
APOVOZOA-A“TOMIAD
Parents
Due process complaint, 7/29/19, 5 pp. Parents
Social history update, 6/16/16, 3 pp. Parents evaluational report, 6/20/16, 4 pp. Parents
Daily schedule for the student, undated, 1 p. Parents
Mid-year 2017-2018 progress report, undated, 16 pp. Parents
Final 2017/2018 progress report, undated, 18 pp. Parents
Mid-year 2016-2017 progress report, undated, 24 pp. Parents
Final 2016-2017 progress report, undated, 16 pp. Parents
Individual learning profile report, 6/16/16, 3 pp. Parents reevaluation, 3/30/18, 22 pp. Parents
2017-2018 student enrollment contract, 9/15/17, 1 p. Parents
Affidavits of payments, 3/21/19, 1 p. Parents
Proof of payments, various dates, 6 pp. Parents , 10/26/19, 2 pp. Parents
Attendance report, 6/25/18, | p. Parents
Affidavit in lieu of direct testimony from parent, 2/21/20, 7 pp. Parents
Affidavit in lieu of direct testimony, , 2/21/20, 3 pp. Parents
IEP, 5/10/17, 18 pp. District
School location letter, 5/19/17, 2 p. District wmWSN
Prior written notice, 5/19/17, 4 pp. District
Ten Day Notice Determination, 912/17, 2 pp. District
DPC determination letter, 10/21/19, 1 p. District
Decision on Extension, 10/11/19, Ip. THO
Decision on Extension, 11/12/19, Ip. THO TT Decision on Extension, 12/12/19, Ip. THO IV Decision on Extension, 1/9/20, Ip. THO V Decision on Extension, 2/10/20, 1 p. IHO VI Motion to Recuse, 2/21/20, 7 pp. IHO VII Opposition Email, undated 1 p. THO VIII Motion to re-argue and grant dismissal upon re-argument, 2/21/20, 7 pp. IHO IX Decision on Extension, 2/24/20, 1 p. IHO
POST HEARING SUBMISSIONS
X Closing Brief, 3/19/20, 15 pp. THO
XI Closing Brief, 3/19/19, 3 pp. THO
XTT Reply, 3/27/20, 2 pp. IHO
XTIT Decision on Extension, 3/23/20, 1 p. IHO