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FINDINGS OF FACT AND DECISION
Case Number: 160334
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 18, 2016
October 31, 2016
Actual Record Closed Date: January 4, 2017
Hearing Officer: Elise Kestenbaum, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 18, 2016
Advocate — Student
Parents
District Representative — DOE
IEP Meeting Participant — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 31, 2016
Advocate — Student
(via telephone) — Student
(via telephone) — Student
Parents
District Representative — DOE
(via telephone) — DOE
INTRODUCTION: — DOE
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by , the Parent (“Parent”) on behalf of , the student (“Student”), through his advocate, from , by filing a Due Process Complaint dated April 26, 2016 with the District.
The Parent is alleging that his son, , was denied a free and appropriate public education (“FAPE”) for the 2015-16 school year and is seeking tuition for his unilateral placement at the for said year.
There were two (2) days of hearings in this matter. Hearings were conducted on July 18, 2016 and October 31, 2016. Extensions were granted in this case making the final compliance date January 11, 2017.[1] A list of Exhibits is attached as Exhibit A. The
Parent and the District submitted exhibits.
BACKGROUND
This case involved an student. During the 2015-16 school year, attended where the Student was unilaterally placed by the Parent.
With respect to the 2015-16 school year, an Individualized Education Program (“IEP”) was developed on May 28, 2015. Pursuant to the May 28, 2015 IEP, the following recommendations were made:
1. ;
2. ;
3. ;
and
4.
.
The District issued a Prior Written Notice (Notice of Recommendation) dated June 22, 2015. D-4. The District then issued a School Location Letter and School Placement Request on June 22, 2015. D-12; D-13. The School Location Letter stated that the recommended school would be
. D-12.
On August 18, 2015, a Ten Day Notice was filed with the District. P-D. The
Parent entered into an Enrollment Contract for the 2015-16 school year on September 7,
2015. P-I.
The Parent filed a Due Process Complaint on April 26, 2016. P-A. I was appointed as an Impartial Hearing Officer on April 27, 2016
POSITION OF THE PARTIES
District’s Case
The District called two (2) witnesses, and and placed thirteen (13) documents in evidence. D-1 – D-13.
The first witness was who has been employed by the District for and is currently at . She presently conducts annual reviews for students in private school as well as attending initial evaluations and re-evaluations.
She also held positions as a for and a
. She has Masters degrees in as well as . Tr. 34.
She is familiar with since she attended his May 28, 2015 IEP meeting as the special education teacher assigned. Tr. 35. The other parties present consisted of the school psychologist, the special education teacher from ’s school and the from the school. Tr. 35. This was a triennial and the student was recommended for a with related services and . Tr. 35. Nine documents were reviewed at the meeting. D-3; Tr. 36.
They included a evaluation (D-5); a (D-7);
(D-6); Teacher Progress report (D-8);
reports (D-9; D-10); etc. They recommended a because they felt that . Tr. 38. In addition, his . Tr. 38. They also recommended and . Tr. 39. The teacher, the , and the Parent agreed with the program recommendations at the meeting. Tr. 40. At the meeting, although the Student had previously been in private school, the Parent wanted an IEP. The team also provided based on the teacher reports and . Tr. 46. His were addressed in the goals and sections and through his . Tr. 47. In the , it indicated that even though there were , he was improving and making progress in that area. Tr. 48-49. Ms. believed that a placement in a would be appropriate for given his educational, social and emotional needs. Tr. 51.
On cross examination, when asked about the profile of a student in a , she stated that it is usually “
.” Tr.
75.She stated that the classifications of students in a could be
. Tr. 75-76.
The next witness was . She is the
(I.S. 250) in . She has worked for the District for ; as a ; as a , then an ; and for the last as . Tr. 98. At , there were students enrolled in grades . There are . There was a Student named that was supposed to attend as a for the 2015-16 school year. Tr. 100. The Student was recommended for a in a community school and they would have been able to accommodate the Student. Tr. 100. Based on the related services on his IEP, they would be able to provide him with . Tr. 101. For the 2015-16 school year, for the , there was one which was not at the max at the beginning of the school year. Tr. 102.
Parent’s Case
The Parent called three (3) witnesses, , and
the Parent, and placed thirteen (13) documents in evidence. P-A – P-M.
The first witness was . He has a Bachelor’s degree and a Master’s degree in as well as a . Tr. 109. He
taught in Milwaukee, Atlanta and Englewood in general and special education programs, he then worked at coordinating their special education program, and for the past he has been the in . Tr. 110. There are students enrolled in the school during 2015-
16. Tr. 111. . Tr.
110. He is certified to teach special education program geared toward
. Tr. 111. hires
, offers opportunities for professional development for staff and provides related services to their students. Tr. 111. The is for students in grades through . Tr. 112.
was part of the team that accepted into the program for the 2015-16 school year. Tr. 113. At the beginning of the year,
.
. Tr. 114.
There were students in his class and were in his class. Tr. 115. Specifically, he testified that . Tr. 117-118. The school runs from . The tuition at was and the related services were for the 2015-16 school year. The related services the Student received were . Tr. 120. The Parents have paid towards tuition for their son. Tr.
121. In the event the Parent does not prevail at this hearing, they still owe the balance of the tuition to the school. Tr. 122. The Student is not enrolled at for the 2016-17
school year.
Based on the information that was reported to the and his observations, he believes that the was appropriate for the Student for the 2015-16 school year. He stated that “
” Tr. 124-125.
On cross examination, testified that the has a permanent charter from New York State to provide special education. Tr. 127. He also testified that every teacher in the school is certified in special education. There was a in ’s classroom, and she was completing a Master’s degree in and had either a provisional or was past a provisional license. Tr. 131.
The next witness was . She has been for . Tr. 135. She is not certified as a teacher in New York State.
She received a Bachelor’s degree in and a Master’s degree from . Tr. 134. Prior to her present position, she taught special education for and then served as a for and for . Tr. 135. For the 2015-16 year, she supervised teachers, helped them create curriculum and individualized it for students, helped with intake process, etc. Tr. 135-136.
She was familiar with because she supervised his teacher, Ms. and spent time observing the classroom, working with her in developing curriculum and individualizing it for Tr. 136. At the beginning of the year,
.
. Tr.
138. Based on her observations, he had
.
. Tr. 138-139. was an issue for him since
. In addition, as a result of , he needed
. Tr. 139. She is not certain if . Tr. 141.
Ms. stated that he was in a class with and
. Since ,
. Tr. 143. Ms. felt that
. Tr. 145. She felt that the goals on the May 28, 2015 IEP were appropriate but implementing them in a classroom would be difficult. made progress during the 2015-16 school year.
.
.
.
. She felt that the was appropriate for the 2015-16 school year since he made progress and it gave him the , the , and , and he made progress. Tr. 148. He was . Tr. 154. He did not receive
. Tr. 154.
The last witness was the Parent. He stated that the Student changed schools several times. Tr. 159. He received from the District. Tr. 159. Prior to the 2015-16 school year, he was in a class of approximately students and . Tr. 161. The Parents transferred him to for the 2015-16 school year because they were told . Tr. 160. He believed he made progress during the 2015-16 school year. Tr. 161. For the 2016-17 school year, he is at
.
On cross examination, he stated that at the May 28, 2015 IEP meeting, he agreed with a but didn’t remember if he adhered to a . Tr. 164. He did not have the opportunity to visit the , which would have been his placement for 2015-16. Tr. 165.
FINDINGS
Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C.
1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]).
Prong 1-Appropriateness of District Program
The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.
Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. 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,
A school district offers 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). However, 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). The statute ensures an “appropriate” education, “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). Additionally, 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). Nonetheless, 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, 20007 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 (20 U.S.C. § 1412 [a][5][A]; 34 CFR 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])
An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; 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).
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).
The Parent alleges that the District failed to draft an IEP for that was reasonably calculated to confer educational benefit for the 2015-16 school year. Based on the totality of the evidence, I do believe that the District met its burden in showing that the recommended program was sufficient to meet the Student’s needs and provide him with academic benefit.
The District testified that nine documents were reviewed at the meeting including:
the Evaluation dated April 14, 2015 (D-5); a
Evaluation dated February 1, 2015 (D-10); a dated February 24, 2015 (D-6); a dated March 4, 2015 (D-7); an
Report dated October 16, 2013; a Evaluation Report dated October 22, 2014; a Teacher Report dated May 28, 2015 (D-8); and a dated September 22, 2014. Each of these documents were carefully reviewed in the May 28, 2015 IEP.
was classified with
. D-1. In the IEP it also noted , and that
. D-1. He also was previously diagnosed with .
Substantively, a thorough review of the hearing record indicates that the CSE at its May 28th CSE meeting provided with FAPE in the LRE and that a placement in a in a community school was appropriate and was designed to address ’s needs. The District’s witnesses provided testimony that the program for was comprehensive and targeted at her disabilities. Specifically, Ms. provided testimony concerning how the CSE determined what his needs were and how they would accommodate them for the 2015-16 school year in order to provide him with educational benefit and enable him to make progress. Tr. 38-51. They recommended a because they felt that and that and the was designed to address this. She specifically stated that “ ” fits the profile of this class. Specifically, she stated that “ Tr. 51, In addition, she stated that the disabilities of students in a program includes students who have . They also determined that would be addressed through the goals section of the IEP as well as the sections and also through his . Ms.
elaborated on the such as “
” Tr. 50,
With respect to related services, the CSE provide with
; and
; and
. The Parents and the District agreed that these services were appropriate for given his issues and that the would be appropriate to deal with his , his , and . D-1. Finally, placement in a community school would provide him with .
It is clear that the District considered several programs before deciding on a in a community school. D-1; D-4. They determined that would not meet his needs at this time. D-1; D-
4.
I also credit the testimony of Ms. that the placement at in the in the would have been able to accommodate the Student since there was room in the classroom at the start of the 2015-16 school year. Tr. 102.
For all of the foregoing reasons, I find that the District provided FAPE to for the 2015-2016 school year. Hence it is not necessary to consider Prongs 2 and 3. See, Application of a Child with a Disability, Appeal No. 02-092. However, I will do so to complete the record.
Prong 2-Appropriateness of Parental Placement
Under the second prong of Burlington, the Parent bears the burden of proving the appropriateness of the Parent’s unilateral placement of at . In order to meet that burden, the Parent must show that offered an educational program designed to meet ’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112.
“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, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F.
Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir.
2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])
The Parent has met his burden in showing that was an appropriate placement for during the 2015-16 school year. According to , is a private special education program that services students with , grades . Tr. 111. hires special education teachers, offers professional development for staff, and provides related services to its students. Tr. 111. Mr. stated that the program has a permanent charter from New York State to provide special education. Tr. 127. The description of the program specifies that the classes “ ” P-B. it also states that “
” It further
indicates that
. D-B.
Specifically, with respect to , Ms. testified that she supervised his teacher and spent time working with her to individualize curriculum to meet his needs.
She stated that in addition,
. Tr. 138-139.Ms.
testified that he made progress during the 2015-16 school year.
.
.
.
.
Tr. 146-148. testified that made progress
and he also made progress
. Tr. 124-125. In addition,
.
In addition to this, and
. Tr. 154.
Therefore, based on the foregoing, in the event the District had not met its burden under Prong one, the Parent met their burden in proving the appropriateness of for the 2015-16 school year.[2]
Prong 3-Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.
The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).
I find that the Parent participated in the May28th CSE meeting and provided the school with all reports, and other necessary evaluations and reports. The Parent also provided consent and allowed the District to complete all triennial evaluations. He also prepared a ten day notice and provided the District with notification that a claim would be brought in this matter. Accordingly, the Parent cooperated with the District.
Based upon his actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.
Based upon the foregoing, I find that the District provided FAPE to the 2015-
16 school year . Accordingly, the Parent’s request for reimbursement and/or direct payment for tuition and related services for at for the 2015-16 school year is hereby denied in its entirety and this matter is dismissed with prejudice.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that the Parent’s request for reimbursement and/or direct payment to the for for tuition and related services is hereby denied for the 2015-
16 school year and this hereby case is dismissed with prejudice.
Dated: January 16, 2017
ELISE B. KESTENBAUM, ESQ.
Impartial Hearing Officer
EBK:
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
Appendix A
Evidence
Parent’s Exhibits
No. Date Document Pages
A. 4/26/2016 Impartial Hearing request 4
B. undated Program Description 2
C. 5/28/2015 Individualized Education Program 16
D. 8/18/2015 Ten Day Notice 2
E. 2015-16 Class Schedule 1
F. 2015-16 Progress Report 9
G. 2015-16 Report 2
H. 2015-16 Progress Report 2
I. 9/3/2015 Enrollment Contract 2
J. 6/20/2016 School Affidavit 1
K. misc. dates Parent’s Proof of Payment 10
L. 2015 Parent’s 1040 US individual
Income Tax Return 2
M. undated ’s Resume 2
District Exhibits
1. 5/28/2015 Individualized Education Program 16
2. 4/22/2015 Notice of IEP Meeting 3
3. 5/28/2015 Minutes 3
4. 6/22/2015 Prior Written Notice
(Notice of Recommendation) 4
5. misc. dates Evaluation 5
6. 2/24/2015 1
7. 3/4/2015 2
8. 5/28/2015 Teacher Progress Report 5
9. 2015-2016 Report by
2
10. 1/30/2015 Evaluation
by 5
11. undated Report 1
12. 6/22/2 V015 School Location Letter 1
13. 6/22/2015 School Placement Request 4
IHO Exhibits
I. Misc. dates Compliance decisions 6
Footnotes
[1] The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. ( IHO-I).
[2] It should be noted however that I have determined that .