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FINDINGS OF FACT AND DECISION
Case Number: 160231
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 3, 2016
May 27, 2016
July 19, 2016
August 26, 2016
October 18, 2016
November 30, 2016
January 18, 2017
Actual Record Closed Date: February 27, 2017
Hearing Officer: Susan M. Barbour, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 20161
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2016
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2016
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 26, 2016
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2016
For the Student:
For the Department of Education:
On May 3, 2016, a telephone prehearing conference was conducted.
, District Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2016
Parents
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2017
Mother — Student
(via telephone) — Student
District Representative — DOE
INTRODUCTION
On April 15, 2016, I was appointed as the Impartial Hearing Officer (IHO) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (IDEA), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program (the student), and the New York City Department of Education (DOE), district 3. The hearing was held on May 3, 2016, May 27, 2016, July 19, 2016, August 26, 2016, October 18, 2016, November 30, 2016 and January 18, 2017.
The parent was represented by The DOE was represented by , District Representative.
Extensions of the compliance date were granted due to witness unavailability, and time to obtain and review the transcripts, evidence and render a decision.
A list of the witnesses who appeared and the documents admitted into evidence are annexed to this decision.
ISSUES PRESENTED
The DOE concedes that it denied the student a free and appropriate public education (FAPE) for the 2014-2015 school year. Transcript (T) at 39
The parents argue that due to the DOE’s failure to provide the student with a FAPE, the DOE should fund the student’s last agreed-to program and placement, as determined by IHO decisions and the state review officer (SRO), as follows:
. T at 42-45; Ex. A & IHO-I
BACKGROUND
The student is diagnosed with .
. T at 58-59; Ex. 3 At the age of , he began receiving , . When he was transferred to the CPSE in , he attended an class with related services. Thereafter, he received to attend to his “ .” Ex. 3
FINDINGS OF FACT
Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.
Dr. is a licensed who has been involved in the student’s care for approximately . T at 47, 54 & 63 Dr. performed evaluations of the student in in 2014 and 2015. T at 54-55; Ex. 3 & E During the June 2014 testing, the student required , was “ ” and
.
; he presented with
. T at 55-56 Dr. recommended , to include
. T at 57-58
. is also used to
. T at 52-54; Ex.
V The student required because of
; other methodologies would not address his needs. T at 66-71
In 2014, the student’s special education program included:
a.
( Ex. V);
b.
(Ex. W);
c.
(Ex. U & X);
d. (Ex. Y);
e. . T at 60; Ex. T at 3
The costs for the student’s 2014-2015 special education program were as follows:
a. for the period between from is approximately (Ex. X);
b. for the period between from is approximately (Ex.U) ;
c. for the period between from is
approximately ( Ex. V);
d. for the period between from the is approximately (Ex. W);
e. for the period between , from is approximately ;
f. from is approximately .
During the 2014-2015 school year, the student
.
.
T at 104-106; Ex. S & T
In June 2015, when Dr. performed a follow-up testing to assess the student’s progress, the student showed improvement as . T at 61-64 The student’s parent, instructors and providers also observed improvement during the 2014-2015 school specifically with . T at 93-94, 97, 101-103 & 107-108; Ex., E, F, G, H, I, J, U, V, W, X & Y
The parents have paid some of the costs associated with the student’s instruction and services, but some charges remain unpaid. Ex. T at 4
CONCLUSIONS OF LAW AND DECISION
The DOE Failed to Provide the Student with a FAPE
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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
The DOE offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). An "appropriate" education, is "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Moreover, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). However, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). 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. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch.
Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
The DOE Denied the Student a FAPE for the 2014-2015 School Year The DOE concedes that it failed to provide the student with a FAPE for the 2014- 2015 school year. T at 39 Thus, I find that the DOE denied the student a FAPE for the 2014-2015 school year.
Requested Relief
When a FAPE is not provided, the DOE may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services selected by the parent were appropriate and equitable considerations support the parent’s claim (Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).
In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (see Burlington, at 370). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [individualized education program]” (Id. at 370-71).
When a student receives instruction or services from a program, prior to the programs’ receipt of payment by the parents, on agreement that the parents will pay, parents who fulfill the reimbursement test may be awarded retroactive prospective funding to the private school. Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F.
Supp. 2d 403 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998).
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; 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]).
The Second Circuit has set forth the standard for determining whether parents have demonstrated the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); see Frank G.
v. Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)).
In this case, the parents argue that the “3-pronged” Burlington/Carter test does not apply. School Comm. Of Burlington v. Dep’t of Ed. Of Mass., 471 U.S. 359 (1985); Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993) They argue that they are only seeking to continue the student’s last agreed-upon placement and services, and thus it’s the DOE’s burden to establish that it was appropriate to modify the student’s program and placement. Ex. A & IHO-I; M.N. v. The New York City Dep’t of Educ. (700
F.Supp.2d 356 [2010]), Application of the Department of Education, Appeal No. 12-062,
Letter to Miller, 55 IDELR 293 (OSEP 2010) and Board of Education of the Pawling Sch.
Dist. v. Schutz, 290 F.3d 476 (2002)
The parents also rely on IHO Lassinger’s February 5, 2013, Findings of Fact and Decision, SRO Appeal No. 13-040 and the Interim Order on Pendency issued May 22, 2015 by this hearing officer, to establish that the DOE was ordered to provide the student with the same special education program for the school years immediately preceding the 2014-2015 school year. Ex. B, C & D
I agree with the parents’ argument and find that the services and program provided in the 2014-2015 school year was the student’s last agreed-upon placement and as they are seeking funding for the last agreed-upon placement, an analysis under Burlington/Carter is not required. I also find that the record establishes that the student continued to need the program and services he received during the 2014-2015 school year. T at 56-59; Ex. 3, 5, 7, 8, K & L Importantly, the record also demonstrates that the student progressed during the school year. T at 93-94, 97, 101-103 & 107-108; Ex., E, F,
G, H, I, J, U, V, W, X & Y
Moreover, the DOE conceded that it denied the student with a FAPE for 2014- 2015 school year. In addition, the DOE did not argue that the costs for the student’s program and services were unreasonable. Indeed, I find that the record establishes the costs were reasonable and based on market rates. I also find that the evidence demonstrates that due to the ,
. Thus,
I also find that the requested costs were reasonable. Accordingly, I find that there is no impediment to the parent’s request for reimbursement/direct funding of the student’s special education program for the 2014-2015 school year.
In any event, if the parents were required to establish that the student’s program and services were appropriate during the 2014-2015 school year, I would find that they met their burden. I find that there is ample evidence in the record to establish that the student’s instructors and were experienced and trained and provided the student with appropriate instruction and services that met his special education needs. Ex. F, G, H, I, J, U, V, W, X, & Y I also find that the parents acted reasonably and in no way attempted to impede the process. Ex. K, L, T, 3, 5 & 8
NOW THEREFORE,
As the DOE has failed to provide the student with a FAPE for the 2014-2015 school year, the DOE is ORDERED to reimburse the parents or directly fund the cost of the
a. student’s at for the period between in the amount of ; and
b. the student’s for the period between from in the amount of ; and
c. the student’s for the period between from is the amount of ; and
d. the student’s for the period between from the is the amount of ; and
e. the student’s for the period between
, from is the amount of ; and
f. the student’s from in the amount of ; and
g. the costs in the amount of .
Proof of the costs shall be indicated by, but not limited to, contracts, enrollment records, receipts, bills or invoices and other reports evidencing the cost of instruction and services.
See M, N, O, P, Q, R, S, T, U. V W & X
Dated: March 3, 2017
SUSAN M. BARBOUR, ESQ.
Impartial Hearing Officer
SMB:
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
Parents:
A Impartial Hearing Request, 1/6/16, 10 p
B State Review Officer Decision-13-040, 2/27/15, 10 p
C Findings of Fact and Decision, 2/5/13, 39 p
D Interim Order on Pendency, 5/22/15, 9 p
DOCUMENTATION ADMITTED INTO EVIDENCE ON JULY 19, 2016
Department of Education
1 Due Process Complaint, 1/6/16, 9 p
2 IEP, 6/10/14, 57
3 , 6/6/14, 4 p
4 , 4/3/14, 2 p
5 Progress Note, 5/13/14, 3 p
6 Progress Note, 5/13/16, 4 p
7 Progress Repot, 3/12/14, 6
8 , 4/9/14, 2 p
9 , 5/15/14, 7 p
DOCUMENTATION ADMITTED INTO EVIDENCE ON NOVEMBER 30, 2016
Parents:
E , 5/15, 8 p
F , 5/3/15, 8 p
G Progress Report, 5/15/15, 6 p
H Progress Note, 5/13/15, 3 p
I Progress Report, 11/13/14, 5 p
J Progress Report, 5/10/15, 3 p
DOCUMENTATION ADMITTED INTO EVIDENCE ON JANUARY 18, 2017
Parents:
K Progress Report, 6/12/14, 6 p
L Progress Report, 6/5/14, 7 p
M Invoices and Payments, various 24 p
N Invoices and Payments, various, 54 p
O Invoice and Payments, various, 54 p
P Invoices and Proof, various, 24 p
Q Invoices ad Proof, various, 24 p
R Invoices and Proof, various, 6 p
S , various, 91 p
T Affidavit of , 1/18/17, 5 p
U Affidavit of , 1/17/17, 2 p
V Affidavit of , 1/12/17, 5 p
W Affidavit of , 1/17/17, 2 p
X Affidavit of , 1/16/17
Y Affidavit of , 1/17/17, 2 p
DOCUMENTATION ADMITTED INTO EVIDENCE ON FEBRUARY 3, 20172
I Parents’ Closing Statement
The DOE did not submit a closing statement or brief.