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FINDINGS OF FACT AND DECISION
Case Number: 155282
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 10, 2015
April 7, 2016
September 26, 2016
Actual Record Closed Date: May 22, 2017
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 10, 2015
Advocate — Parents
Interpreter — Parents
DOE Representative — DOE
DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2016
Advocate — Parents
Mother — Parents
Interpreter — Parents
Parents
(via telephone)
DOE Representative — DOE
DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2016
Advocate — Parents
Mother — Parents
Interpreter — Parents
Parents
DOE Representative — DOE
Teacher — DOE
(via telephone)
INTRODUCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S. §1415(f)(1), regarding the educational placement and program of for the 2014-2015 and 2015-2016 school years. The hearing was convened at the written request of ’s parent (the “Parent”), by letter dated April 14, 2015, and amended, by letter dated November 13, 2015. (Exhibits A, L) A hearing was conducted on November 10, 2015, April 7, 2016, and September 26, 2016, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearings and a list of the documents received into evidence are attached to this decision.
In scheduling the hearing date, 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 F.R. §300.515(a). The requests were granted, in accordance with 34 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 §200.5(j)(5)(ii)]
BACKGROUND
is a , who was at the beginning of the 2014-
2015 school year and at the beginning of the 2015-2016 school year. She has been classified by the DOE’s Committee on Special Education (“CSE”) as a student with . The CSE convened on July 17, 2014, to develop an Individualized Education Services Program (“IESP”) for for the 2014-2015 school year. (Exhibit 1) In the IESP created on that date, the CSE recommended a program consisting of
;
; and . In a “10-Day
Notice Letter,” dated December 1, 2014, the Parent, through her advocate, notified the DOE that the Parent would be enrolling at for the 2014-2015 school year and requesting an impartial hearing seeking funding from the DOE for the tuition cost. (Exhibit D) The Parent unilaterally enrolled at for the 2014- 2015 school year. By letter dated April 14, 2015, the Parent requested an impartial hearing with regard to the 2014-2015 school year. (Exhibit A)
The CSE convened on June 11, 2015, to develop an Individualized Education Plan (“IEP”) for for the 2015-2016 school year. (Exhibit 5) In the IEP created on that date, the CSE recommended placement in a with a ratio, with the related services of , and . The DOE sent a “School Location Letter” to the Parent, dated July 28, 2015, identifying the recommended placement site for for the 2015-2016 school year. (Exhibit 6) In a “10-
Day Notice Letter,” dated August 18, 2015, the Parent, through her advocate, notified the DOE that the Parent would be enrolling at for the 2015-2016 school year and requesting an impartial hearing seeking funding from the DOE for the tuition cost. (Exhibit O) The Parent unilaterally enrolled at for the 2015- 2016 school year. By letter dated November 13, 2015, the Parent amended the request for an impartial hearing to include its claim that the DOE also failed to offer a FAPE to for the 2015-2016 school year. (Exhibit L)
The Parent is seeking an order directing the DOE to fund the tuition for to attend for the 2014-2015 and 2015-2016 school years.
POSITIONS OF THE PARTIES
THE DOE’S CASE
2014-2015
is a for the DOE who served on the CSE
which conducted the meeting on July 17, 2014, at which the IESP was developed for for the 2014-2015 school year. She listed the participants at that meeting, which included, along with herself: , a ; and, Ms. , ’s mother. (T. 27-28; Exhibit 1) Ms. explained that the CSE relied upon progress reports and the Parent’s input in creating the IESP. The CSE recommended a program of ,
, and
. This recommendation provided more periods
of than she had been receiving because the previous level of “wasn’t sufficient.” The CSE continued the and services. (T. 29-
34) Ms. confirmed that her testimony was based on her review of the IESP, and not her independent recollection, as she could not recall the specifics since the meeting was in July 2014. (T. 35-36)
2015-2016
is a teacher assigned to the CSE. Ms. participated in the CSE meeting held on June 11, 2015. The other participants were Ms. , representing
; Ms. , a ; and Ms. , the Parent. The CSE
recommended a , , and
. Ms. testified that the CSE made this recommendation because “ ” The CSE thought would benefit from being in a community school where she could receive her related services and . (T.
102-114; Exhibit 5) Ms. confirmed that she did not have any independent recollection concerning the meeting, and could only refer to what she read in the documents. (T. 127-131)
THE PARENT’S CASE
2014-2015
has been the at for eight years.
She described the school as “
” She stated that the foundation of the program is and . The classes have a ratio. (T. 39-40). The school has . In the 2014-2015 school year, there were a total of students in the whole school. (T. 40-
41) .
.
.
. (T. 53)
came to in November 2014. Ms. conducted the of during the admissions process. She described that was , , and . There were students, ages , in ’s class in the 2014-2015 school year. Ms. reviewed the class schedule during her testimony. She explained that received
. All of
’s was provided in a setting in the 2014-2015 school year. Her was provided in either a or setting.
.
.
. (Exhibit E; T. 42-48; 50; 54; 60)
Ms. stated that made progress in the 2014-2015 school year.
. Her improved. Ms.
believes that provided with an appropriate special education for the 2014-2015 school year. The school was able to address her needs in a , which included , and the program was tailored to her needs.
(T. 48-50; 72)
2015-2016
is the and of . The school
has been servicing students for as a program with the goal of
. The key
components of the program are the and the
. Ms. explained that, typically,
.
.
. She stated
that the students “ ” and “
.”
. During the 2015-2016 school year, there were a total of students, with in ’s class. (T. 136-143) Ms. stated that
. She
said, “ ” (T. 166) did not receive
at school, since it is not provided. However, the goals for are incorporated into the . received outside of school, which was arranged through , and she was transported by the school for the every . The school worked with the on how to help in school. (T. 171-172)
Ms. explained the class schedule for the 2015-2106 school year. She stated that the portion of the school day, from , was for , which is from and for . This was the extent of the component during the school day . On , the school day is from . Each week alternates between “ ” and “ .” On “ ,” approximately is spent on , including . Ms. stated that during the school year are “ .” (Exhibit P; T. 144-146)
Ms. described as having
.
is an issue for and
(T. 151-152) Ms. explained the program and the manner in which it is customized for each student.
. The “ .” It
is taught like any . (T. 153-159; 183)
According to Ms. , definitely made progress in the 2015-2016 school year. (T.152-153) Ms. explained that the Parent entered into a contract with the school for the 2015-2016 school year, which was signed by the Parent and Ms. on September 9, 2015. The tuition cost for the academic portion of the day was .
However, the Parent owes a total of to the school for the 2015-2016 school year.
This includes the tuition of ,a of , and a
. Ms. confirmed that the Parent has not paid any money towards the 2015-2016 school year tuition. The school was aware of the Parent’s economic situation, and that she was seeking funding from the DOE. If the Parent does not prevail at the impartial hearing, “
”
(Exhibit R; T. 163-166)
2014-2015 and 2015-2016
is ’s mother. Ms. explained that attended school at prior to attending . and the school suggested that Ms. look for a more appropriate school for Ms. testified that she did not know that could attend a public school at that time. began attending in December of the 2014-2015 school year. demonstrated a little progress in the 2014-2015 school year. Ms. had signed a tuition contract with the school for the 2014-2015 school year. She did not pay any money to the school toward that contract.
(T. 209- 211; 214-215) The tuition agreement for the 2014-2015 school year reflects a total tuition amount of . The total is broken down into a of ; academic tuition of ; tuition of ; and a charge of . (Exhibits H and K)
Ms. explained that she participated in the CSE meeting for the 2015-2016 school year by telephone. She received a letter with the name of the school being recommended for She visited the school, met the teacher and saw the class. Ms.
felt the school was inappropriate for since there were too many students there.
((Exhibit N; T. 205-207) attended for the 2015-2016 school year and made some progress. Ms. confirmed that she signed a tuition contract with the school.
(Exhibit R) She has not made any payment toward the tuition. If she does not prevail in the impartial hearing, she does not know how she will pay the money owed. She has the sole responsibility for the finances in her family. She may start collecting money from people to try to pay it.
. (T. 207-209; 211)
Ms. testified that, since , has attended a because . She believes that a might be better since she gets , and
.
. (T. 217-218)
. . (T. 213-219)
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 FAPE (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 the board of education: (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch.
Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A.
v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch.
Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). In evaluating the substantive program developed by the CSE, 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000][internal quotation omitted]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union
Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEP’s that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at
132).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the child's present levels of educational performance, including a description of how the child's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof, to determine the child's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).
An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability, to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. §
300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii]).
The testimony of both Ms. and Ms. , provided for the 2014-2015 and 2015-2016 school years, respectively, was limited primarily to listing the participants in the CSE meetings and the program recommendations contained in the IESP and IEP.
These two DOE witnesses had no independent recollection of the meetings in which they participated related to While they were called upon to support the DOE’s position that was offered a FAPE for the 2014-2015 and 2015-2016 school years, they added no substance or support for that position. It is noted that the record reflects that the DOE did not offer a placement to for the 2014-2015 school year.
The DOE has not demonstrated that the CSE’s recommended programs were appropriate to meet ’s individual needs for the 2014-2015 and 2015-2016 school years. The DOE did not present any evidence to establish that the programs were reasonably calculated to allow to make meaningful educational progress. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the
Parent’s case.
The Parent has the burden of establishing the appropriateness of the program she has 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, she 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) The Parent’s 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])
The DOE has not challenged the appropriateness of the program at for for the 2014-2015 and 2015-2016 school years. There has been no testimony offered to dispute the testimony of the educational professionals who have worked with , or the testimony of There was no argument made with regard to the appropriateness of the Parent’s placement, except for the following, as stated during the DOE’s opening statement: “ .” While it is unclear how the DOE planned to “demonstrate” the inappropriateness of the Parent’s placement, it is clear that no steps were taken to do so and no further mention was made of the DOE’s position in that regard. The parties chose not to make closing arguments and, therefore, the DOE never even addressed the testimony presented by the Parent’s witnesses, through argument or otherwise.
I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with , have direct knowledge of her special education needs, and have personally observed her progress, have all determined and agreed that ’s program was appropriate for for the 2014-2015 and 2015-2016 school years. Ms. , Ms.
, and provided persuasive testimony and evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The program was reasonably calculated to address ’s individual needs and to allow her to make meaningful progress. In fact, made progress through her participation in the program.
The final criterion for an award of funding or reimbursement is whether the Parent’s 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).
The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s full participation with the CSE and communication regarding her concerns. The DOE failed in its obligations to There is no basis on which to reduce or modify the remedy for the Parent.
ORDER
1. The DOE failed to offer a FAPE to for the 2014-2015 and 2015-2016
school years.
2. The Parent’s unilateral placement of at was appropriate for the 2014-2015 and 2015-2016 school years.
3. There are no equitable considerations which would reduce or bar an award of reimbursement.
4. The DOE shall directly pay to , the full cost of the portion of the tuition and fees for ’s enrollment for the 2014-2015 and 2015- 2016 school years, in the amount of and , respectively, for a total of . Reimbursement shall be made immediately upon the Parent’s submission of an invoice from the school.
Dated: June 5, 2017
AMY LYNNE ITZLA, ESQ.
Impartial Hearing Officer ALI:
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 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
DOE’s Exhibits
1. Individualized Education Services Program, 7/17/14, 11 pages
2. Report, 5/14/15, 3 pages
3. Student Progress Report, 2/17/14, 2 pages
4. Progress Report, 5/5/13, 2 pages
5. Individualized Education Program, 6/11/15, 13 pages
6. Social Location Letter, 7/28/15, 1 page
7. Prior Written Notice, 7/28/15, 4 pages
8. School Placement Request to , 6/29/15, 3 pages
9. Individualized Education Program, 9/4/15, 12 pages
10. Prior Written Notice, 9/4/15, 4 pages
11. Teacher Progress Report, 7/10/14, 2 pages
12. Prior Written Notice, 7/17/14, 3 pages
Parent’s Exhibits
A. Impartial Hearing Request, 4/14/15, 3 pages
B. Program Description, undated, 2 pages
C. Individualized Education Services Program, 7/17/14, 11pages
D. Ten Day Notice Letter, 12/1/14, 3 pages
E. Class Schedule, 2014-2015, 1 page
F. Class Description, 2014-2015, 1 page
G. Student Progress Report, 2014-2015, 4 pages
H. Enrollment Contract, 2014-2015, 2 pages
I. 1040 U.S. Individual Income Tax Return, 2014, 2 pages
J. Attendance Record, 2014-2015, 1 page
K. Corrected Contract, 10/30/14, 2 pages
L. Amended Impartial Hearing Request, 11/13/15, 5 pages
M. Individualized Education Program, 6/11/15, 12 pages
N. School Location Letter, 7/28/15, 2 pages
O. Ten Day Notice, 8/18/15, 2 pages
P. Class Schedule, 2015-2016, 1 page
Q. Class Description, 2015-2016, 1 page
R. Tuition Contract, 9/9/15, 2 pages
S. School Affidavit, 12/22/15, 1 page
T. Student Progress Report, 2015-2016, 3 pages
U. Resumé of , undated, 3 pages