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: 158352
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 14, 2016
October 24, 2016
November 10, 2016
Actual Record Closed Date: January 13, 2016
Hearing Officer: John J. Naun, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2016
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2016
Attorney (Via Telephone) — Student
Attorney — DOE
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 10, 2016
Attorney — Student
Parents
Student
(Via Telephone) — Student
District Representative — DOE
Prior to this hearing the child had two IEP meetings and two proposed programs but only one physical placement in a school. (Exhibit D: 4/29/15 and Exhibit G: 11/9/15)
[As discussed below there is a Second Circuit Court decision that states placement occurs when the IEP provides a program.] This child who his mother refers to as is classified as (exhibit G). The child who was did not receive a placement as a result of his latest IEP, 11/9/15 IEP.
Although the boy has “ ” he has limitations such as issues. He also has issues and . His IEP of 11/9/15, changed his placement to a after the CSE in effect accepted the mother’s argument that . This position was also supported by the boy’s and his private school teachers. The documents and mother’s testimony indicates the boy has and has . (Exhibit G-6) The mother and documents note he is . His private school teachers provided
—and it apparently works. It is noted that
. He also has
. Because of this and
, his noted that he needs . There
appears to be no dispute over the related services the boy is to receive,
The student .
He has . It is also reported that he needs
.
He also needs .
The mother noted
. It is reported that
. (Exhibit
G-2) According to his teachers and mother, the boy has made improvements in these areas. The mother notes that it is because of the he has had in the past that he made progress--the CSE finally agreed with her. However, even though the CSE agreed on a placement, she notes it never actually effectuated the physical class placement pursuant to the 6/15/15 IEP. It is customarily the procedure and practice in the New York City schools that the parent receives notice of the actual school placement subsequent to the IEP with the right to visit the school. It is all part of the expected participatory parental practice accepted in New York City and anticipated by the parents. [It was especially important to this parent who effectively changed the CSE placement after visiting the designated school after the first IEP.] The DOE representative at the hearing acknowledged that the DOE never finalized the proposed placement by sending notice of the actual school.
The DOE presented no case in terms of evidence or witnesses and, in fact, conceded Prong I of the B urlington/Carter criteria. The parent presented documentation and witnesses to support their private placement. The private school administrator noted the following points about her private school.
The administrator noted that she has interacted with the boy and when needed. She noted examples of the staff using and stated that all of the teachers are familiar with the boy’s needs. She related the specifics of the program, which are geared to the boy’s individual needs in , . She emphasized the approach and also noted the .
The mother testified about the boy’s issues and the challenges he has had to face. She related that .
. He has issues. AS
noted above, she visited the the CSE at offered in the earlier IEP and detailed the reasons why . She received support over the years from his former teachers and seeking a with . The CSE, which had originally proposed an , changed its placement in its subsequent IEP and endorsed the parental position by offering of a and . The mother noted that she was pleased by the CSE decision to change and that if her son was placed in a along the lines of the second IEP she would have considered enrolling her son. The mother gave additional detailed testimony as to the boy’s progress based on his attendance in the private school.
The mother testified that not having received notice of the actual school placement, she was not able to visit the school, as was her conscientious and participatory past practice. Being unsure of her son’s education and placement for the next school year, she prophylactically placed him in the private school he now attends. In agreeing to privately place her son, she made sure that if the boy was accepted to a fitting public school she would only lose her down payment and not owe the entire tuition to the private school. She thus left open the prospect of possible public school placement
Discussion and Findings
The DOE must comply with all IDEA procedures; however, not all procedural errors will render an IEP legally inadequate under the IDEA. A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). A procedural violation cannot be the basis for a finding of a denial of a FAPE unless the procedural inadequacies “(1) impeded the child’s right to a free appropriate public education; (2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents’ child (emphasis added); or (3) caused a deprivation of educational benefits.”
M.P.G. ex rel. J.P. v. N.Y .C. Dep’t of Educ., No. 08 Civ. 8051, 2010 WL 3398256, at *2
(S.D.N.Y. Aug. 27, 2010)(citing 20 U.S.C.§ 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2))
; see also 8 NYCRR 200.5(j)(4)(ii). While in terms of this parent’s participation in the process and her not receiving notice of the specific school to which the child is assigned to attend is a serious for this mother in terms of her meaningful participation, the Second Circuit In T.Y . v. NY C DOE, 584 F.3r 412, has emphatically stated the failure to name a specific school is not fatal to a DOE provision of FAPE.
The failure to place a child in a particular class or school pursuant to New York City DOE practice for over a year after an IEP is developed is a valid procedural parental participation issue as applied to the facts of this case and must be considered in the context of the overall placement. AS noted above, when the parents were offered an placement the mother who was a witness at the hearing visited the school and thoroughly evaluated its fitness for her child. This is a good practice and should be encouraged in terms of parental participation. It is confusing to meaningful parental participation if a DOE repeatedly sends out notice of placement in a particular and then just decides not to do it. She was willing and expecting to visit the new school for the placement related to the IEP of June 2015 as she effectively did in the past.
In terms of timely placement, and to meet its legal obligations, a DOE must have an IEP “in effect” at the beginning of each school year for each student in its jurisdiction with a disability (34 C.F.R. § 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlow e v. New Y ork City Dep’t of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July
3, 2008] [stating "[a]n education department’s delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement ... for the beginning of the school year in September'"]; A pplication of a Student with a Disability , Appeal No. 08-
088). Even though in this case it seems the DOE delay to physically place the child in a particular school far exceeds the date of the second IEP and the established practice of the CSE in NYC (which was relied on and expected by parents) the placement, as note above, was a legally”effected” pursuant to case law when the IEP created a program. The parent had no legal right to know the designated school or class. The program is the placement.
However, the one more controlling and dominant issue or fact that does remain, is the fact the DOE conceded on the record that it waived Prong I of the Burlington /Carter criteria (proof it provided a FAPE). The DOE has the affirmative duty to prove it offered the child a FAPE in New York State (Prong I). Once the DOE waives Prong I, we only then have to consider Prong II or the appropriateness of the private school placement and also Prong III on the issue of equities.
Based on the record the private school selected by the parent is appropriate as indicated by the facts above; and, in addition the evidence shows the parent acted in an equitable manner. The school had a program and curriculum consisting of a trained and adequate staff to meet the boy’s educational needs and the parent acted in an equitable and reasonable manner at all times. (The DOE offered no rebuttal evidence to these facts.)
Therefore, it is ordered and found that:
1. The DOE failed to prove it provided the boy with a FAPE;
2. The parents provided proof that the private school placement was appropriate;
3. The parents acted in an equitable manner;
4. The DOE shall reimburse the parents for the tuition of the child at the private school (i.e. )
So Ordered Dated: January 18, 2017
JOHN J, NAUN, ESQ.
Impartial Hearing Officer
JJN:
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department 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 seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days 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 date of the decision sought to be reviewed. 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 right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Notice of Unilateral Placement, 8/24/15, 3 pages
B Request for Impartial Hearing, 10/12/15, 4 pages
C Prior Written Notice, 6/12/15, 3 pages
D IEP, 4/29/15, 15 pages
E , 10/29/14; 11/5/14; 11/12/14, 22 pages
F Letter from , 6/15/15, 1 page
G IEP, 11/9/15, 19 pages
H Affidavit, 6/20/16, 2 pages
I Enrollment Contract, 4/22/15, 3 pages
J Report Card, 2015-2016, 8 pages
K First Semester Report Card, 2015-2016, 8 pages
IMPARTIAL HEARING OFFICER
I CFUS – Request for Extension, 1 page