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FINDINGS OF FACT AND DECISION
Case Number: 158753
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 19, 2016
October 24, 2016
November 30, 2016
December 1, 2016
December 7, 2016
Actual Record Closed Date: February 6, 2017
Hearing Officer: Judith Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2016
Attorney — Student
Parents
District Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2016
Attorney — Student
Mother — Student
District Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2016
Attorney — Student
Parents
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 1, 2016
Attorney — Student
Parents
(Via — Student
Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2016
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
Introduction
On September 19 , 2016 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”),20 U.S.C. 1415 regarding the impartial hearing request filed by the parent alleging the failure of the DOE to provide a FAPE to (“the child “) for the 2015-2016 school year (“SY”). The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 9:30 a.m. The hearing was continued on October 24, 2016 at 9:30am; November 30, 2016 at
1:00pm; and December 1, 2106 at 1:00pm, December 7, 2016 at 1:00pm .
A list of exhibits admitted into evidence is attached hereto.
Background.
The child is . He attended . He had an IEP placing him in an and he received services as specified on his IEP for that year. He is classified as .
. . The IEP developed for the 2015-
2016 SY and recommended continuing as the child’s placement. The parent was dissatisfied with that recommendation and unilaterally placed the child at the
(“ ”).
She is seeking tuition reimbursement for the 2015-2016 school year.
The Parents Position
The parent contends that the DOE denied the child a FAPE during the 2015-2016 school Year because the child was not been provided with an appropriate program by the CSE. She further contends that the public school placement offered by the DOE cannot meet the child’s special needs and that the CSE denied her meaningful participation in the CSE meeting held on the last day of the 2014-2015 SY. She also alleges:1) the students goals on the IEP are immeasurable; 2) the IEP did not state all of the mother’s concerns;
3) it did not note that ; 4 ) that and 5) that . She further contends that is an appropriate placement and that the equities tip in her favor. The DOE’s Position
The DOE contends that:1) all of the child’s needs and mandates can be met a
;2) the recommendation of is an appropriate program; 3) the parent participated in the IEP meeting, 4) in not an appropriate placement; 5) the equities do not favor the parent.
FINDINGS OF FACT
The child is . When he was , he was diagnosed with . He received including .(Tr. 408 ) For , was placed at the in a and was also given a battery of special education related services on top of his program (Ex. C-2; Tr. 410). ). He was identified as and subsequent to a ‘ ‘IEP he was classified as . With full consent of his parents, the was placed in an and provided with . The CSE team was reconvened once during SY to remove as to agreed to by his parents. When he was placed in an for , the parent went to observe him and saw that “ ,” “ ,”
“ ” and
. (Tr. 417-18, 465, 467). The parent indicated that the school was focusing on and she was informed her that . Instead, she thought and
.
In 2013 the parents had him evaluated by a . The
2013 report noted that
.
.(Ex. C-2-3).
(Ex. C-3).
.
The recommended that the child be enrolled in the at , for the 2014-2015 school year (Tr. 412). In September 2014, the child was enrolled in which does not offer any program.
The parents agreed to this public school placement but he was unable to do well there.
The parents hired an , as well as a .
The staff at recognized that the child was a (Tr. 154) who had . In February of 2015, the parents were sent a “ ” letter, which indicated that “
.” (Ex. E-1)
(Ex. P).1 This was confirmed by objective testing and empirical data obtained by t he in March of 2015 (Ex. D; Tr. 363-366).
The parents had obtained an updated report in March which they shared with the CSE for the IEP meeting that was held in June of 2015. (Tr. 81). On
June 23,2015, a was conducted (Ex.5) and on June 24,2015 a was conducted (Ex. 4). On June 26,2015 an IEP meeting was held. The 2013 evaluation was not received by the DOE before the parents produced the disclosure (T.41) but the CSE relied upon a summary of it which was in the updated evaluation report prepared (Ex.D) for the development of the 2015-2016 IEP.
All of the child’s teachers and service providers were present as was a parent member.
The at also serving in the capacity district representative chaired the meeting. The child’s classification as was continued ( Ex. 8-1). The IEP team recommended that the child be placed in a program in a , and related services of (Ex. 8-
11).The parent attended the June, 2015 IEP meeting and she believed that the team
1
(Ex.P. 3), (Ex.P.. 3).
largely ignored the updated evaluation (Tr. 439). She shared her concerns about the recommendation but said that the was“immobile” about the recommendation and simply added to the IEP support to assuage her concerns (Tr. 441-44, 450, 475).
It was recommended that he receive (Ex.8-7). The IEP specifies that this consist of , and . For and , the IEP mandates the additional services of ( ). The IEP also mandates and . For , the child was scheduled to have classes without any special education services at all. The without any included . (T. 87) The CSE team did not discuss these with the parent at the IEP meeting. (T. 88). The , it was not made clear of how the child’s schedule could have been implemented at . (T.92-94)
At the meeting the child’s strengths and weaknesses were discussed. While
, he exhibited
. He was not able to . He was not able to and that he needed (Tr. 42, 46-50).
The prepared section of the
IEP using a combination of the parent provided evaluation, progress reports and input from his then present classroom teachers. The IEP notes (Ex. 8,T. 48).
The IEP did not include any and did not reference the child’s . (Tr. 63-64). His were attributed to (Tr. 66) and his and was attributed to his (Tr. 74-75). The believed that the child. could benefit from (Tr. 80, 82
No grade or age equivalent data was included the on the IEP. The child ’s from the evaluation were omitted because they were consistent with teacher’s and related service provider’s experience with the child.
(Tr. 136). But there were also scores that were omitted which showed (Tr. 315, 318, 321-25, 332-334).
The at in the child’s said she remembered
him well. He had difficulty with . He had needs in terms of and (Tr. 154-55, 210-
12, 220, 222). He was able to , but (Tr. 155). According to her, he made progress in but . First, she said that he started as an and by the end of the year, . Later she stated that (Tr. 156-57, 206)
She indicated that the child (Tr.158).In addition, according to the , the measures do not shed light on the[2] because (Tr. 394). This was consistent with the teacher who said (Tr. 161,
224). Even with , (Tr. 161, 225).
. (Ex. P)
When the child was re-evaluated, in 2015, the was alarmed by the that he saw since the evaluation in 2013 because the child had been receiving some special educational services in the that he recommended as well as (Tr. 318). He noted that
; that
; that (Tr. 329,
333, 353, 389); that
; and that (Tr. 318-322).
(Tr. 323). Based on the formal
and objective testing measures with which the found no fault the concluded that (Tr. 324-25, 363-66). This was consistent with what the parent had observed at home.
; ;
; (Tr. 462). The opined that (Tr. 326). Admitting that he might have been in error to have recommended the year before, he now recommends rather than (Tr. 335, 339-40, 355, 369).
The , who has no connection with the private school, believed that was capable of meeting the child’s needs because to offer the and he required. In addition, the school is specifically geared to work with children with the type of disabilities that the child presented with (Tr. 356-57, 385). At , he. would be placed with similar peers. (Tr. 357). He further believed that , would ultimately prove toxic because . (Tr. 357-361, 370
The parent signed a contract with in April of 2015 in order to reserve a seat. She indicated that she would receive a refund from the school in the event that the child was offered an appropriate public school placement (Tr. 432).He was enrolled there on Septembet 8, 2015.
utilizes various programs for a differentiated curriculum to meet the individualized needs of the students (Tr. 486). accepts (Tr. 487-88). The students at have been diagnosed with . (Tr. 489). teachers are trained in the . There are a well as on staff (Tr. 491). The class ratio in is and are formed based upon (Tr. 493, 513). The child was placed in a group with similar peers of similar needs (Tr. 498).
The at had some understanding of the child’s needs. She believes he requires and (Tr. 499-500). When he entered , . He had . He has made excellent progress while at (Tr. 501,
507, 512).
(Tr. 513)
Upon entering , the child also had and (Tr. 525). In addition, he presented with
. He required
and needed (Tr.
526, 528). With respect to the child’s ,
.
(Tr. 530-31).
At , he was placed in , which consisted of (Tr. 536). He required (Tr. 533) and he required (Tr. 546, 569). His improved significantly over the year as did , (Tr. 550-54).
improved so that which he could not do at the beginning of the SY. (Tr. 553) ). The child is now than when he arrived at (Tr. 571).
When the child first entered , he presented as ; and even described as “ ” (Tr. 588-89). He has, however, made progress at and have improved; he has learned ; his and have improved; and which the , the teacher and the all agree is an appropriate placement for him (Tr. 591-92).
The parent fully cooperated with the DOE in the preparation of the IEP and the placement process.
The parent has paid the full tuition at . (Ex. Q).
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free and appropriate public education (“FAPE”), which includes special education and related services, provided at public expense, and that meets the standards of the state education agency.
20 U.S.C. § 1400(d)(1)(A); 20 U.S.C. § 1401(9). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with an individualized education program (“IEP”). 20 U.S.C. §1401(9)(D); 34 C.F.R. 300.320. The IEP is the road map for providing the child with FAPE. The DOE must provide the child with a program and placement the is reasonably calculated to provide the child with an educational benefit.. The DOE bears the burden to show that FAPE was provided. In this case, the DOE did not meet its burden.
If the services offered by the board of education were inadequate or inappropriate,
(2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim, the DOE may be required to reimburse the parent for the tuition paid for the private placement. Florence County Sch. Dist. Four v. Carter, 510
U.S. 7[1993
The parent contends that FAPE was denied for several reasons. She contends that
1) the child has not been provided with an appropriate program by the CSE; 2) that the public school placement offered cannot meet the child’s special needs; 3)t the CSE denied her meaningful participation in the CSE meeting held on the last day of the 2014-2015
SY;4) the goals on the IEP do not address ; 5) the IEP did not adequately state the child’s present levels of performance; 6) it did not note that ; 7) that and 8) that
.
Looking at these allegations the evidence supports a finding of a denial of FAPE.
First, with regard to allegations 1,5,6,7, and 8, the evidence shows that the program has failed to provide the child with a reasonable opportunity to obtain an educational benefit. The child had been placed in the previous year and . His teacher indicated that .
She did not adequately explain why
. Moreover, neither the teacher nor the CSE team disagreed with the test results found by the which showed when he updated the evaluation.
; that
; that (Tr.
329, 333, 353, 389); that
; and that (Tr. 318-322). Skills with respect to ( ) (Tr. 323). The concluded that (Tr. 24-25, 363-66). In addition, , this was consistent with what the parent had observed at home.
The DOE defended its decision to place the child in an once again because they thought despite
. But this does not establish that the program will give the child a reasonable opportunity to acquire and educational benefit or to overcome his academic deficits in any way. .Where, as here it has been shown that and that such a program does not align with the child’s cognitive and performance profile based on his deficits in processing speed and working memory, a general education program is inappropriate. Application of the Department of Education, Appeal No.
14-130. The fact that the CSE recommended a program is indicative of its recognition that the child needed more support than an which is not available on a . It was established by the record that the child needs a program which cannot be provided in an program where . Finally, the to offer the child the type of instruction he needs. . Accordingly, the recommendation of an program, even with , was a denial of FAPE.
Second, the placement offered could not fully implement the IEP even if he program had been found to be appropriate. The evidence fails to show that the child could have received a program at as apparently mandated on his IEP3.
(Ex.8.8) In fact, the evidence showed that there was no program available at all at and did not state whether was available in the summer. In addition, given the complexity of the child’s IEP, once was added, the DOE could not definitively state how the child’s program could be implemented at . Thus, was not an appropriate placement.
There was no discussion of this notation on the IEP at the hearing.
With regard to the parent’s allegation that she was denied a meaningful opportunity to participate in the IEP, the evidence does not support this allegation. While it is true that the meeting was held on the last day of school, the parent was present and was given an opportunity to present her concerns. The fact that the CSE did not ultimately recommend what the parent had hoped for does not establish that she was denied meaningful participation. Moreover, the fact that the CSE did not explain various aspects of the recommend at the meeting—such as that
- does not by itself establish that she was denied her right to meaningfully participate since she did not agree with the program in any event and her concerns in this regard were heard.
Finally, the parent is correct that the IEP fails to establish goals to address to address . Nor are these deficits addressed in the . In the absence of such goals, it is difficult to understand how the teacher would be informed of such deficits from looking at the IEP and how she would adequately address them. Thus, the omission of these goals constitutes a denial of FAPE.
Since the DOE failed to meet its burden, it is the parent’s burden to show that is an appropriate placement for the child offering him a reasonable opportunity to obtain an educational benefit and that the equities tip in her favor. .
is a designed for
. It serves children with . There
are about in the . The class ratio is generally for and , as small as , for .
. The and s at understood the child’s
needs. When he began at , ,
. When he arrived at , the said that
. She described the child as . By the time of the hearing, . His said that , the child made progress . For example, his improved, he could , he has . All of the staff believed that the child required a program; was appropriate for the child and was meeting his needs.
With regard to the equities, the DOE did not produce evidence to show conduct on the part of the parents that would preclude or otherwise limit reimbursement. The parents cooperated the attempting to obtain an IEP for their son. They attended all meetings, shared their independent evaluations. They allowed the CSE to observe their child, they provided the DOE with timely notices at all stages of the proceedings and they were candid at the CSE meeting about why they felt the June IEP was insufficient.
Accordingly, the equities in this case favor reimbursement.
The parent has paid the full tuition of for the 2015-2016 SY. (Ex. Q)4
Ordered that the DOE shall reimburse the parent for the tuition paid to for the 2015-2016 SY in the amount of .
Dated: February 22, 2017
JUDITH T. KRAMER, ESQ.
Impartial Hearing Officer JK:
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.
The DOE is not responsible for reimbursing the parent for the .
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 Exhibits
DOE DATE DESCRIPTION NUMBER
Exhibit OF PAGES
1 11/04/2015 Due Process Complaint 5
2 06/10/2015 Parent Request For Meeting 3
3 06/23/2015 1
4 06/24/2015 1
5 withdrawn
6 Undated Student Progress Report 2
7 03/13/2015 Annual Review Plan 4
8 06/26/2015 Individual Education Plan 14
Parents Exibits
A. Ten Day Notice Letter August 24, 2015 2 pages
B. withdrawn
C. May 4, 2013 11 pages
D. March 7, 2015 13 pages
E. February 11, 2015 1 page
F. Enrollment Contract April 24, 2015 4 pages
G. Schedule Undated 1 page
H. 2015-2016 1 page
I. Program Description Undated 1 page
J. Mid-Year Report Card 2015-2016 10 pages
K. End-Year Report Card 2015-2016 11 pages
L. Mid- Year Report 2015-2016 3 pages
M. Year- End Report 2015-2016 3 pages
N. End of Year Progress Note 2015-2016 1 page
O. Prior Written Notice
(Notice of Recommendation) September 18, 2015 4 pages
P. Report Card 2014-2015 7 pages
Q. Payment Affidavit September 14, 2016 1 page
R. June 2015 2 pages
Footnotes
[2] The was not classified as and the parent did not challenge his classification., but if he also has a it should not have been ignored by the CSE.