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THE UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
_____________________________________________
In the Matter of, on behalf of,
Findings of Fact
Petitioners, and Order
and Case # _____
__________ School District,
Respondent.
_____________________________________________
INTRODUCTION
This case was brought before me upon my designation as impartial hearing officer (IHO)
to hear this matter, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 (f)(1). On May 19, 2016, a due process complaint notice (DPCN, or hearing request) requesting a hearing was (Mr. , Mrs. , parents or parent), on behalf of their son
____________( ), arguing that the __________ School District (__________, or district) had failed to provide__ with a free appropriate public education (FAPE).
The case was logged into the state Impartial Hearing Reporting System (IHRS) as Case #
_____. Appearing for the district was ______________, Esq., of ____________. Appearing for the parent were ________________________________..
The parents’ DPCN made the following specific requests:
a. that the school district provide__’s parents with
b. that the school district reimburses parents for__ ; and
c. that the school district reimburses parents for__l
__________________. Ex. 1.
The demands refers specifically to__’s at school
(_______________), beginning on or about ___________ (Ex. 1, ¶ 143) and. ________ conducted __________________(Ex. 1, ¶ 144).
A prehearing conference was held on June 21, 2016, and the hearing convened on July 22, 2016, August 19, 2016, October 24, 2016, November 4, 2016, February 10, 2017, March 13, 2017, April 21, 2017, and April 24, 2017.
On April 13, 2017, the parents filed, _____________________The hearing continued on June 12, 2017 and July 20, 2017. Furt___ scheduled dates in the summer were adjourned due to witness availability.
The hearing was scheduled to reconvene on October 6, 2017 and October 16, 2017,
The hearing reconvened on December 15, 2017. As had been discussed previously with the parties, ________________________ The record closed upon receipt of briefs and__l
___________on March 9, 2018.
FINDINGS OF FACT
__ is a __ year old student resident in the __________ school district, currently classified as l________________. Exs. 6, 12.__ has strengths in and weaknesses in
________________and to a lesser degree in ________________. Tr. 80-82; Ex. 24.
In 2012,. _____________ reported that__ had _________ diagnoses of Tr. 1373-1374, 1377-1378; Ex. MM. In 2014, wrote that__ was under ___care for ___________________________ Tr. 1476, Ex. LL. At the time,_ was classified as
__________________ Exs. B. C, 6, 12, 20.
At school in __________,__ was seen as ____________________Tr. 87-92, 108, 111,
132-133, 204, 731-733, 736-737. According to___parent, ____________________________ Tr.
1150, 1158-1160, 1162-1163; Exs. WW, YY.
2013-2014 school year
In 2013-2014,__ was in
The parents, who _______________ requested _________________2014. Tr. 1138- 1139, 1144, 1272, 1515-1516.
CSE meeting,. A CSE meeting was held on ____________ to develop the IEP for the 2014-2015 school year. At the meeting,__ was recommended to Tr. 1381-1382, 1418; Ex. B.
Mrs. sent an email to _____________ the district’s special education director, _________ acknowledging _____________________Tr. 1384.
_________________ the parent requested a CSE meeting, stating that ________________Tr. 1380, 1389-1394.
2014-2015 school year
CSE meeting. At a CSE meeting held on __ was recommended for Tr. 1231, 1400-1401.
The parent agreed with ________________Tr. 1404.
A series of recommendations _____________
_______________described__ as ____________
Early in the 2014-2015 school year, _______________
_____________________services were provided on the
There was a lot of back-and-forth between the parent and the school about
________________
At a CSE meeting held on _________________, test results ________________ showed______________ The parent agreed that ___ had seen improvement
________________, expressed concerns about ______________________
The recommendation for the school year ____________________ the CSE meeting held on __________________ was designated as a reevaluation and an annual review, in preparation for _______________
________________ scores reported by teachers and by the parents
_______________________
At the meeting, the parent raised the issue of
____________reviewed testing of______
reported on__’s performance in _____________
______________ evaluations were discussed at the _________ meeting.
According to Mrs. , the discussion was that___________ exhibited _____________
The IEP included the parent’s statement of concern about ____________
_______________ ________ the IEP, as requested by the parent. Mrs. recalled the discussion at the meeting that _____________________ said that the ________program was meeting___needs,allowing ___ Tr. 749.
Request for _____________ Following the ___________meeting, the parents sent
_______________ an email asking for _____________. The district ________
____________. Following the ____________meeting, _______________ assigned
_____________Tr. 755-757, 785-787; Ex. 39.
____________. In emails to _______________ in ___________, Mrs. continued to express concern about ______________
CSE meeting, _____________A requested
_______________ shared with the committee__’s progress _________________Goals were __________________
In addition, _______________ reported _____________ re confidence. Tr. 734-735,
789-791, 1440, 1494-1495; Ex. 12.
_______________ testified that____
There was discussion about___
Concerns were raised by __________________
The recommendation for__’s program __________
According to _______________, everyone agreed that___had ___________
As recommended on___IEP,__ attended ________________
______________ On, _______________ received ___________
__ began the school year in __________, Mrs. explained that___ CSE meeting,. ___________________ a CSE meeting was convened ____________ to
___________________
At the ____________meeting, it indicated___was _______________
The program recommendation was ______________________
_______________ testified that the request _________________
_________________
__________________ testified that _______________ She stated that__ was
___________________
Ms. ____ explained that she had spoken to ________________
Ms. ____ relayed the report ____________that__
The _____ report _______________ described instruction___received
Ms. ____ testified that ____________According to Ms. ____, there is a
__________________
Assessments showed that ________________
Ms. ____ acknowledged that ______________
Mrs. testified about__’s education
_______________
Request for. ________. The DPCN requested __________
Mrs. never mentioned ____________
CONCLUSIONS OF LAW
The parents in this case challenge the _________________ and seek ______________.
In addition, they seek __________________ which will be discussed separately below.
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School
Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
ISSUE 1 - Appropriateness of School District Program
An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see__so Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
In this case, the parties disagreed on _____________
In defining the scope of the inquiry, it must first be noted that ____________ In addition, it is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original DPCN unless the other party agrees or the original
DPCN is amended. 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR 200.5(j)(1)(ii); 20 U.S.C. § 1415(c)(2)(E)(i)(II); 34 C.F.R. § 300.507(d)(3)(ii); 8 NYCRR 200.5(i)(7)(b).
Thus, the scope of inquiry in this case is ____________
The claims asserted in the DPCN _____________ are
The Supreme Court in its most recent decision provided specific guidance to what constitutes a FAPE, stating that "It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." As the Court explained further: "[Students'] educational program[s] must be appropriately ambitious in light of [the] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Endrew F. v. Douglas County Sch. Dist., 137 S.Ct. 988
(2017).
In this case, the evidence was overwhelmingly clear that _____________
To the extent the___________________ continued to be a complaint by the parent
__________________ , the parent’s concern was ______________
While _____________, __ received ______________
The DPCN included the parent’s claim that ______________The parent’s brief added
________________
The DPCN included _____________
The subject of ________________ requires separate comment. As noted above, the DPCN included _______________
As noted in ______________
Finally, ___________ The DPCN included ______________
____________ In regard to the charge of ___________
In order to establish a claim ________
In sum concerning _______________ appropriate in light of their circumstances.
Endrew F. v. Douglas County Sch. Dist., ibid. I credit the descriptions given _______________,
_______________, and _______________ of _______________ I credit _______________’s statement that
Finally,
ISSUE 2 – Appropriateness of Private Program
Although the above ruling in the district’s favor on the first prong of the Burlington analysis makes furt___ Burlington analysis unnecessary, findings on the second and third prongs are included in this decision for consideration in any possible appeal.
Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for__. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that _______________ offered an educational program designed to meet__’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.
Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
When determining whether the parents' unilateral placement is appropriate, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d 356, at 364 (2d Cir. 2006). In Frank G., the Second Circuit explained that to "qualify for reimbursement under Individuals with Disabilities Education Act (IDEA), parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only show 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."
Mrs. had explained _______________
The question is whether __________________ were appropriate for__. The child was
______________
The district also argued that requiring__ The question is basically _______________ instruction and services ________
For the reasons noted above, I find the child’s program at _______________
ISSUE 3 - Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither 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 U.S.C. §1412(a)(10)(C)(iii).
In its defense ______________
The district also claimed _____________ The demand in the DPCN was for
_________________
There was ______________ evidence _____________ concerning _________________
_______________on this third prong of the Burlington analysis. Consideration of equitable factors ___________
Education Law requires a district provide ______________
Although the parent requested _____________ In fact, as noted above, evidence was undisputed about _____________ Appeal of a Student with a Disability, Decision No. 16,430,
November 16, 2012; Application of a Child with a Disability, Appeal No. 07-082, September 4,
2007.
For the reasons noted above, _______________
The DPCN includes a demand for ___________ baffling. It was unclear __________ It was undisputed that ______________ In fact, ____________
Mrs. __________________ It was anticipated that ___________________would be
____________
For the reasons noted above, the demand for _________________
ORDER
1. Request for reimbursement of________________
2. Request for reimbursement for ______________
3. Request for ____ costs _________________
4.
IT IS SO ORDERED.
Dated: March 26, 2018
_____________________________
NANCY M. LEDERMAN
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If eit___ party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
WITNESS APPEARANCES
July 22, 2016
___________Special Education Director, __________
August 19, 2016
___________
October 24, 2016
___________
November 4, 2016
___________, Coordinator, ___________
February 10, 2017
___________
___________, Special Education Teacher, ___________
March 13, 2017
___________
April 21, 2017
___________
April 24, 2017
___________ Coordinator, _______________
Mrs.
June 12, 2017
Mrs. ,__’s parent
July 20, 2017
Mrs.
December 15, 2017
___________
___________
EXHIBITS
DISTRICT EXHIBITS
| 1 | Due process complaint notice, 5/19/16, 26 pages |
| 2 | Response, 5/31/16, 28 pages |
| 3 | Classroom observation, ___________, 6/13/16, 4 pages |
| 4 | Prior written notice, 10/15/15, 2015, 3 pages |
| 5 | ___________, September 2014, May 2015, 2 pages |
| 6 | IEP ___________17 pages |
| 9 | Ten-day notice, ___________, 9/3/15, 1 page |
| 10 | ___________Training Materials, undated, 10 pages |
| 11 | ___________evaluation, ___________, 8/28/15, 12 pages |
| 12 | IEP, ___________, 16 pages |
| 15 | ___________, 7 pages |
| 16 | ___________, 6 pages |
| 18 | Prior written notice, 4/24/15, 2 pages |
| 20 | IEP, ___________, 15 pages |
| 21 | ___________ reevaluation, 1/26/15, 3 pages |
| 22 | ___________ 1/23/15, 7 pages |
| 23 | ___________ 1/23/15, 7 pages |
| 24 | ___________evaluation, ___________10 pages |
| 25 | ___________evaluation, 1/20/15, 25 pages |
| 26 | ___________observation, ___________1/7/15, 1 page |
| 27 | ___________reevaluation, ___________1/7/15, 5 pages |
| 28 | ___________evaluation, ___________, 12/15, 12/16/14, 5 pages |
| 31 | ___________ 9/11/14, 6 pages |
| 32 | ___________, 6 pages |
| 35 | ___________12/20/14, 3 pages |
| 36 | ___________, 12/15/14, 3 pages |
| 37 | ___________, 10/21/14, 2 pages |
| 38 | ___________, 12/15/14, 2 pages |
| 39 | ___________, undated, 4 pages |
| 43 | ___________7/1/14 – 3/25/15, 9 pages |
| 44 | ___________ undated, 5 pages |
PARENT EXHIBITS
| A | IEP, ___________, 11 pages |
| B | IEP, ___________, 11 pages |
| C | IEP, ___________, 14 pages |
| D | IEP, ___________, 15 pages |
| V | ___________complaint, 8/18/14, 24 pages |
| W | ___________complaint, 10/8/14, 14 pages |
| X | ___________complaint, 9/5/14, 15 pages |
| Y | Class profile, ___________,1 page |
| HH | Emails, 9/3/14 – 7/21/15, 61 pages |
| JJ | ___________Report, ___________, 2 pages |
| LL | Letter, ___________, 4/8/14, 1 page |
| MM | Letter, ___________, 5/3/12, 4 pages |
| OO | ___________ Report, _______________, 27 pages |
| ___________, 9/22/15, 6/15/16, 9 pages | |
| UU | Email, ___________, 3/30/15, 2 pages |
| VV | Emails, ___________, 10/9/14 – 5/26, 8 pages |
| WW | Email thread, ___________, 9/13/13 – 12/17/13, 6 pages |
| XX | Emails, ___________, 5/4/15-5/11/15, 3 pages |
| YY | Emails, ___________, 3/16/15 – 3/17/15, 1 page |
| AAA | Consent form, ___________ evaluation, 3/16/15, 1 page |
| BBB | Emails, ___________, 3/12/15 – 3/13/15, 2 pages |
| FFF | Email, ___________, 9/4/14, 1 page |
| GGG | Email, ___________, 2/2/14, 1 page |
| HHH | Email, ___________, 11/2/14, 1 page |
| III | Emails, ___________, 3/16/15, 3/17/15, 1 page |
| JJJ | Emails, ___________, 2/4/15, 1 page |
| KKK | Email, ___________9/5/14, 1 page |
IHO EXHIBITS
| I | Prehearing Conference Summary, 6/28/16, 2 pages |
| II | IHO Extension decisions, 7/15/16 – 2/18/18, 20 pages |
| III | Consolidation Order, 5/26/17, 5 pages Exhibits concerning ___________________ |
| IV | Letter, ___________, 9/19/17, 1 page |
| V | Letter, IHO Lederman, 9/23/17, 1 page |
| VI | Emails, ___________, 9/19/17 – 9/28/17, 3 pages |
| VII | Letter, IHO Lederman, 10/2/17, 1 page Post-hearing submissions |
| VIII | District’s Memorandum of Law, ___________, 1/25/18, 36 pages |
| IX | Parent’s brief, ___________, undated, 22 pages |