NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
STATE OF NEW YORK
COMMISSIONER OF EDUCATION
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =X
In the Matter of the Due Process Complaint Brought by the Parent(s) of the Student,
Petitioner
and
SACHEM CENTRAL SCHOOL DISTRICT
Respondent
=======================================X
DECISION & ORDER
Date of Birth: [Redacted]
Dates of Hearing: December 6, 2016, December 7, 2016, December 14, 2016, January 18, 2017, February 15, 2017, March 8, 2017, March 21, 2017, March 24, 2017, April 24, 2017, May 5, 2017, May 16, 2017, May 18, 2017, June 7, 2017, June 16,
2017, June 22, 2017, July 12,
2017, July 19, 2017, October 18,
2017, October 27, 2017
Hearing Requested by: Parents
Record Close Date: February 1, 2018
Hearing Officer: Robert L. Nisely, Esq.
20 Waterside Plaza, 17K
New York, NY 10010
(212-684-5118) Hearing Officer’s Decision & Order NYSED
On July 6, 2016, I was appointed to conduct an impartial hearing under the federal Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1415(f)(3))
by the Sachem Central School District (“District”), concerning the special education program of [redacted]
(the “Student”) for the 2016-17 school year (IHO I).
The Parents requested the hearing by filing a due process complaint, dated July 1, 2016, with the District, which was subsequently amended on September 7, 2016 (P-A, P-B). I conducted the first hearing on December 6, 2016 at the offices of the District in Sachem, New York. The hearing continued on December 7, 2016, December 14, 2016, January 18, 2017, February 15, 2017, March 8, 2017, March 21, 2017, March 24, 2017, April 24, 2017, May 5, 2017, May 16, 2017, May 18, 2017, June 7, 2017, June 16, 2017, June 22, 2017, July 12, 2017, July 19, 2017, October 18, 2017 and October 27, 2017.
Both parties were represented by counsel and all compliance deadlines were extended at the request of both parties and in accordance with the regulations of the New York State Commissioner of Education (“Commissioner”)(IHO
III, IV). Hearing Officer’s Decision & Order NYSED
I. BACKGROUND
Except as otherwise noted, the following profile of the Student and case history are based on undisputed facts in the hearing record.
A. STUDENT’S PROFILE
The Student was born in [redacted] and resides with his Parents (D-10 at 1, D-26 at 1). His classification for IDEA purposes is [redacted]. (D-10 at 2). At the hearing the parties stipulated that this classification is not in dispute (T. at 55).
The Student has a [redacted ((D-16 at 1).
The Student is [redacted] (D-10 at 4).
The Student has [redacted] (D-10 at 1,7).
Since entering kindergarten in 2015, the Student has attended the [redacted](“Public School”)(D-3 at 1, D-10 at 1). During the 2015-16 school year, the Student attended a class [redacted](D-3 at 1).
B. CSE MEETING
On May 10, 2016, the Committee on Special
Education (“CSE”) convened to conduct two meetings Hearing Officer’s Decision & Order NYSED concerning the Student. In attendance for these meetings were a [redacted] from the District (“[Redacted]”); the District’s Director of School Services (“Director”); the principal of the Public School; the Student’s [redacted]
teacher (“CT”); a [redacted] (“[Redacted]”) and three of the Student’s [redacted] (D-10 at 2). Also present were the Parents and three of their consultants and educational experts (Id).
[Redacted] and the Director acted as co-chairs, although [Redacted] left early because of other scheduling commitments and the Director acted as sole chair for the remainder of the meeting (T. at 439-40).
The first meeting, which is referred to in the record as the “requested review” (“RR”) meeting was convened to review the Student’s progress and services for the 2015-16 school year (T. at 306-7). The
Individualized Education Program (“IEP”) originally developed for that year had specifically provided that there was to be a return to the CSE in November 2015 for further review (D-3 at 1; T. at 293). However, because of scheduling difficulties, the meeting did not take place until May 10, 2016 (D-33). Hearing Officer’s Decision & Order NYSED
Also on the agenda for the RR meeting was a proposed amendment to the Student’s 2015-16 IEP that [redacted](D-
6).
The second meeting was convened to conduct an annual review (“AR”) and prepare an IEP for the 2016-17 school year (D-10 at 1).
Prior to the formal start of both meetings, the participants reviewed [redacted] (P-C at 2, 4-5, D-10 at 5-6). At the RR meeting, the CSE decided to modify some of the Student’s goals for the 2015-16 school year and also directed [redacted] (T. 326-8, 336, 340, 362 and
366). A copy of the amended IEP adopted at the RR meeting is part of the hearing record (P-C).
At the RR meeting, the CSE decided [redacted](D-11
at 1).
C. IEP
At the AR meeting, the CSE developed an IEP for the extended 2016-17 school year that recommended [redacted]
(T. at 372-3, 381).
The CSE also recommended that the Student receive
[redacted] (D-10 at 1). Hearing Officer’s Decision & Order NYSED
The IEP prescribed [redacted] (D-10 at 12).
The IEP directed that the Student [redacted].
The IEP contained a list of 12 goals
[redacted](Id.).
For each long-term goal the IEP also listed short-term goals that would serve as intermediate steps toward the achievement of the long-term goal (Id).
With some exceptions, progress toward achieving the goals was to be measured monthly with observation as the main method of monitoring (Id). [redacted]. The AR IEP directed that the Parents receive progress reports concerning their [redacted] progress toward meeting his goals 4 times per year (D-10 at 12).
D. POST CSE EVENTS
On June 17, 2016, the Parent [redacted](“Private
School”) (D-37 at 1-2). Testimony at the hearing established that [redacted].
On September 7, 2016, the Parents filed a due process complaint (“DPC”) with the District amending an earlier complaint that had been filed in July (P-A, P-B).
The DPC alleged that the District had failed both Hearing Officer’s Decision & Order NYSED procedurally and substantively to offer the Student a free appropriate public education (“FAPE”) for the 2016-
17 school year (P-B at 2).
As to procedure, [redacted] (P-C at 6-8).
With respect to the substantive adequacy of the IEP
FAPE, the DPC declared [redacted] (P-B at 2,3,8).
For relief the Parents demanded that the District pay for the Student’s tuition, costs and expenses (including transportation) at the Private School (P-B at 9). [Redacted]. However, at the hearing held on October 18, 2017, Parents’ counsel withdrew all requests for relief other than the demand for the payment of tuition and transportation expenses (T. at 4197).
According to the hearing record, the Student
[redacted] (T. at 1163, 3949).
Before summarizing the cases presented by the District and the Parents, I must note that at the start of the hearings, both parties stipulated through their attorneys that the only school year in dispute was the 2016-17 school year (T. at 54). Thus, although the testimony in this case, as well as the documentary Hearing Officer’s Decision & Order NYSED evidence, ranges over both the 2015-16 and 2016-17 school years, the only IEP under legal challenge is the AR IEP.
II. DISTRICT’S CASE
The District presented 5 witnesses in the following order of appearance: [Redacted], the Director,
[Redacted], CT, the Student’s [redacted] (“[REDACTED]”), and [redacted] for the 2016-17 school year
(“[REDACTED]”). All of the witnesses except for [REDACTED] had participated in the May 10, 2016 CSE
meeting.
Following is a summary of the testimony and evidence presented by the District at the hearing. I have used a topical format in preparing this summary and therefore the order in which testimony is discussed does not always reflect the order of presentation at the hearing.
1. [Redacted] and [Redacted]
[Redacted] testified that [redacted] T. at 1133).
CT testified that [redacted]
She said that [redacted] (T. at 1276)]. Hearing Officer’s Decision & Order NYSED
CT also described [redacted] (T. at 1258-69, 1294-
5).
2. [Redacted] Issues
[Redacted], [Redacted] and CT spoke [redacted] (T.
at 1295, 1299).
[Redacted] and [Redacted] testified that when the Student first entered the Public School [redacted] (T. at
1306-7).
[Redacted] testified about [redacted] (T. at 604).
[Redacted] explained that [redacted] (T. at 527).
CT and [Redacted] testified that [redacted] (T. at
499, 501-2, 944, 1568).
[Redacted] testified that [redacted] (T. at 539, D-
41 at 2).
Referring to [redacted](T. at 1009).
Referring to [redacted] (T. at 790, D-49 at 1).
3. [Redacted]
[Redacted] discussed the [redacted] Hearing Officer’s Decision & Order NYSED
[Redacted] testified that [redacted]. She also noted
[redacted](T. at 1033, D-27).
In the interest of brevity, I shall not [redacted].
4. Academic Performance
In this section, I am using [redacted].
Concerning the Student’s academic performance, CT testified that [redacted] (T. at 1246).
However, she admitted on cross-examination that [redacted] (T. at 1654-5).
CT pointed out that [redacted] (T. at 1584-5, 1590).
Shortly afterwards she would [redacted] (T. at 1587,
1593).
According to her testimony, [redacted] (T. at 1593).
An example [redacted] (P-U, P-MM).
Although CT acknowledged that [redacted] (T. at
1600-1).
She further testified that [redacted] (T. at 1627-
8). However, on cross-examination, [redacted] (T. at
1627, D-10 at 9). Hearing Officer’s Decision & Order NYSED
CT testified about [redacted], which is documented in the hearing record (T. at 1370-80; D-44). However, she acknowledged that [redacted] (T. at 1648, D-10 at 11-12).
[REDACTED], who [redacted] testified about the [redacted]. However, only [redacted](T. at 1955).
Testifying about the [redacted]T. at 1966, 1971-2;
D-3 at 6, P-C at 9). [REDACTED] acknowledged that
[redacted](T. at 1990). However, she asserted that,
[redacted]T. at 1926, 2048; D-56 at 5, 6).
She noted, however, that [redacted](T. at 1990, P-C
at 9).
With respect to the 2016-17 school year, [REDACTED]
testified that at the AR meeting, she recommended
[redacted] (D-10 at 9).
[REDACTED], who [redacted], testified that
[redacted](T. at 2143, 2186).
[REDACTED] explained that [redacted](T. at 2205).
She acknowledged that [redacted] (T. at 2170, 2205). She also admitted that [redacted] (T. at 2170, 2192, 2283,
2293).
5. [Redacted] of Parental Demand Hearing Officer’s Decision & Order NYSED
[Redacted], [Redacted], CT and [REDACTED] all opined that the type of [redacted] placement demanded by the Parents would be inappropriate for the Student,
[redacted](T. at 50, 157-9, 849-50, 1443-4, 1997). For example, [redacted](T. at 849-50).
III. PARENTS’ CASE
The Parents’ first witness was the [redacted] of the Private School (hereinafter referred to as “AED”). She has held this position since [redacted] (T. at 2394,
2975).
AED holds a [redacted] (T. at 2376).
She described [redacted]. She testified that
[redacted] (T. at 3078).
AED testified that she first met the Student
[redacted]T. 2553-4). However, he did [redacted](T. at
3949).
AED explained that [redacted] (T. at 2882-3, 3791).
She testified that that his instructors [redacted] (T. at
3815-6). The Private School also assigns a [redacted] (T.
at 2405). She testified that [redacted](T. at 3906). Hearing Officer’s Decision & Order NYSED
The School has on staff an [redacted] (T. at 2414,
2430, 2837-8). This means that [redacted](T. at 2838).
Referring to the Student’s daily class schedule, which is part of the hearing record, AED testified that his school day [redacted] (T. at 2877, P-JJJ, NNNN). She declared that [redacted](T. at 2880-2).
AED testified that [redacted] (T. at 2832-4).
AED testified about how she had developed
[redacted](T. at 3720-51: P-OOOO, PPPP, QQQQ, RRRR, SSSS,
TTTT).
[Redacted] charts showing [redacted] (P-OOO, TTT,
XXX). Although AED testified that [redacted](T. at 3735).
AED testified that she had developed a [redacted](T.
at 2999, P-KKK). She emphasized that [redacted](T. at
2730-1).
She explained that [redacted] (T. at 3001, 3008).
According to her testimony, [redacted] (T. at 3002).
With respect to the [redacted] (T. at 2692, P-AAAA at 1-2). She explained that the term “[redacted] (T. at
2687). Hearing Officer’s Decision & Order NYSED
She then decided that the appropriate [redacted] (T.
at 2696-8).
AED testified that she prepared [redacted], which is part of the hearing record, and [redacted] (T. at 2716-7,
P-FFF at 1, 3).
Under this [redacted](P-FFF at 1, 3). To
[redacted]T. at 3054, 4018; P-FFF at 1, 3).
Upon [redacted]T. at 2720-2; P-FFF at 4).
Citing [redacted] in the hearing record, AED
testified that [redacted] (T. at 2828-9, 3710-1; P-YYY at 1, P-EEEE at 10).
However, AED said that, [redacted] (T. at 2813-4,
2817-8, 2829-30). She testified that [redacted] (T. at
2829, 3985). To [redacted](P-GGGG at 3).
Referring to [redacted] (T. at 3051, 3702; P-IIII at
3-5, P-KKKK).
In her direct testimony, AED opined that the
Student’s placement at the Private School was appropriate, [redacted] (T. at 3076). She went on to say that the [redacted](T. at 3076, 3079-80). Hearing Officer’s Decision & Order NYSED
On cross-examination, AED admitted that
[redacted](T. at 3951).
She also testified that [redacted] (T. at 3764,
3780, P-QQQQ at 1).
She said that the [redacted] (T. at 3796-7, P-OOOO at 5). She testified that [redacted](T. at 3988).
AED acknowledged that [redacted](T. at 3996, P-IIII at 5). However, she described the [redacted](T. at 3996).
The Parents’ next witness was a [redacted] (“MD”), who [redacted] He was allowed to start his testimony before AED finished hers.
MD is [redacted] (T. at 3207, 3271). {Redacted}, he testified that [redacted] (T. at 3208).
He also observed that [redacted] (T. at 3209-10).
MD said that the Student [redacted] (T. at 3210,
3225).
He further explained that the Student [redacted] (T.
at 3214). He disagreed with [redacted] (T. at 3219). He went on to point out that, [redacted] (T. at 3219-20).
Reiterating [redacted] (T. at 3224). Hearing Officer’s Decision & Order NYSED
MD testified that he participated in the May 10 CSE meeting by telephone [redacted](T. at 3253, 3270).
MD testified that [redacted] (T. at 3230, 3235). He explained that [redacted] (T. at 3229, 3234, 3238).
[Redacted], he remarked [redacted] (T. at 3231).
On cross-examination, MD acknowledged that
[redacted] (T. at 3241-4).
When asked by the District’s counsel about
[redacted] (T. at 3254, D-13). He explained that [redacted] (T. at 3254).
He also acknowledged that he [redacted] (T. at 3262,
P-O).
The Parents’ next witness was a [redacted] (“NP”), who [redacted] (D-16, P-FFFF). Like MD, he was allowed to start his testimony before AED finished hers.
NP [redacted] T. at 3280). He is a [redacted] (T. at
3286).
NP testified via telephone that [redacted](T. at
3291-2). [Redacted], according to his testimony (T. at
3301). Hearing Officer’s Decision & Order NYSED
On the [redacted], according to his testimony (T. at
3292, D-16 at 3). He noted that [redacted] (T. at 3308,
D-16 at 2-3).
NP explained that [redacted](T. at 3291, D-16 at 3).
He described the [redacted] (T. at 3290).
As for [redacted](T. at 3292-3, D-16 at 4).
NB rejected [redacted](T. at 3300). He also asserted that [redacted] (T. at 3327).
NB stood by [redacted] (T. at 3310, D-16 at 5). He added [redacted] (T. at 3311).
NP testified that [redacted] (T. at 3314, 3318,
3336). He noted that [redacted] (T. at 3315, P-FFFF at 3-
4).
NP testified that he did not [redacted] (T. at
3317). He also recounted that the Student [redacted] (T.
at 3318).
NP repeated [redacted. [Redacted], he opined (T. at
3327).
On cross-examination, NP acknowledged that
[redacted] (T. at 3334, 3343). Hearing Officer’s Decision & Order NYSED
NP testified that the Student [redacted](T. at
3345). However, he maintained that [redacted] (T. at
3351).
The next witness was the Parent, who was allowed to start her testimony before AED had finished hers.
At the outset of her testimony, she recounted
[redacted](T. at 3425).
Commenting on [redacted](T. at 3443, 3445, 3452,
3461).
She testified that he [redacted] (T. at 3458).
The Parent testified that [redacted] (T. at 3464-6).
She said that [redacted] (T. at 3465).
She said that, [redacted] adding that [redacted] (T.
at 3464).
In her testimony, the Parent strongly disagreed
[redacted](T. at 3495-6). She said that [redacted] (T. at
3519).
She suggested that [redacted] (T. at 3477).
Referring to [redacted] (T. at 4070-4; P-BBB). And she added that the [redacted] (T. at 4072). Hearing Officer’s Decision & Order NYSED
The Parent also challenged the District’s claim that the Student [redacted] (T. at 3491, 3527, 3533).
The Parent testified that when she attended the
Requested Review and Annual Review meetings in May 2016, she told the CSE that [redacted] (T. at 3507-8, 3531-2).
According to her testimony, [redacted] (T. at 3507,
3560-1). But the Director [redacted](T. at 3560-1).
The Parent testified in the summer and fall of 2016,
[redacted] (T. at 3566, 3582-3). She said that she received [redacted] (Id.).
The Parent testified that after the May 2016
meeting, she notified the District in writing that she did not agree with its recommended placement and intended to place her son at the Private School (T. at 4097-8; D-
37).
Concerning the Private School, she testified that the Student [redacted] (T. at 4078).
She also said that [redacted](T. at 4074).
On cross-examination, she acknowledged that
[redacted](T. at 4328-9, 4331). Hearing Officer’s Decision & Order NYSED
The next witness was HP, who is [redacted](T. at
4203, 4244). She was allowed to testify before the Parent had finished her testimony.
She said that [redacted](T. at 4182, 4193). She explained that [redacted](T. at 4192).
HP testified that [redacted] (T. at 4201, 4227). She said that [redacted] (T. at 4212, 4227, 4229, 4249; P-
DDDDD, P-WWWW).
Citing [redacted] that are part of the hearing record, she said that [redacted] (T. at 4237, 4239; P-
AAAAA at 1-2).
On cross-examination, HP acknowledged [redacted] (T.
at 4255, 4265).
The Parents’ final witness was EC, [redacted] (T. at
4408). She [redacted]as an educational consultant (T. at
4399-4400, 4496).
She testified that, at the Parents’ request,
[redacted]T. at 4411, 4441, 4459; P-F at 1).
She testified that, [redacted](T. at 4420, 4423,
4442-7, 4459-60; P-F at 10-12). Hearing Officer’s Decision & Order NYSED
In regard to the May 10, 2016 CSE meeting, she testified that [redacted](T. at 4451-3).
On cross-examination, she acknowledged that
[redacted] (T. at 4556, P-F at 1).
After the Parents rested, counsel for the District announced that she would not call any rebuttal witnesses
(T. at 4566).
IV. FINDING OF FACT & LAW
The key legal issue in this case is whether the District offered the Student a FAPE for the 2016-17 school year. Recently, the Supreme Court expanded and clarified the standard for determining what constitutes a FAPE in Endrew F. ex rel Joseph F. v Douglas Cty. Sch.
Dist. RE-1, 137 S. Ct. 988 (2017).
In Endrew, the Court held that “a school must offer an IEP reasonably calculated to enable a [disabled] child to make progress appropriate in light of the child’s circumstances.” Id. at 999.
After noting that its 1982 decision in Board of Ed.
of Hendricks Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, had involved a child who Hearing Officer’s Decision & Order NYSED was progressing smoothly through the regular curriculum, the Court went on to say:
“If that is not a reasonable prospect for a child, his IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances … The goals may differ, but every child should have a chance to meet challenging objectives.” Id. at 1000.
The Court in Endrew explicitly rejected the lower court’s holding that an IEP would pass muster under the IDEA if it offered an opportunity for “merely more than de minimis” progress. Id. at 1000-1.
The Court’s decision left untouched earlier case law, which held that when a school district failed to provide a FAPE, the parents may unilaterally place the child in a private school at the school district’s expense, provided that the following three prong test is satisfied: (1) the services offered by the district were inappropriate;(2) the services selected by the parents were appropriate; and (3) equitable considerations support the parents’ claim. Sch. Comm. Of Burlington v.
Dep’t of Educ., 471 U.S. 359 (1985) Hearing Officer’s Decision & Order NYSED
Under Education Law §4404(1)(c), the District bears the burden of proof on the first prong and the Parents on the second.
A. PRONG 1 - SUBSTANTIVE ADEQUACY
Based on the [redacted], I find that the [redacted]
Since the AR IEP does not provide [redacted] I find that it is not substantively adequate under the IDEA as interpreted in the Endrew case.
[Redacted] (T. at 3224, 3234, 3238, 3270, 3310-1,
3321, 3327; D-13, P-O, D-16 at 5-6, P-FFFF at 5-6). These
[redacted] (T. at 3191-3207, 3280-3288). In addition,
[redacted] (T. at 3247, 3340-1).
Both witnesses [redacted] (T. at 3230, 3235).
NP credibly testified that [redacted](T. at 3311).
Citations [redacted](D-16 at 5, P-FFFF at 5).
The [redacted] detailed in [redacted]. To take one example, NP [redacted](T. at 3302).
I credit [redacted] testimony that the Student
[redacted] (T. at 3229, 3317). As NP succinctly put it,
[redacted] (T. at 3317). Hearing Officer’s Decision & Order NYSED
To counter the Parents’ request [redacted]. Although the District pressed this point forcefully at the hearing, the AR IEP is silent about why the CSE denied the Parents’ request.
After examining the hearing record, I find that this line of argument does not withstand close scrutiny.
[redacted] (T. at 2067-8).
Therefore, [redacted].
In fact, [Redacted] [redacted] (T. at 894, 1108-9;
D-24 at 6). In a similar vein, [REDACTED] testified that the Student [redacted] (T. at 2083).
Even more telling was [Redacted]’s testimony that
[redacted](T. at 830).
I credit the testimony of NP, [redacted] (T. at
3333, 3337-8).
The hearing record contains no information
[redacted] As I shall discuss in my Prong 2 analysis, this assumption is incorrect.
Therefore for all the reasons just discussed, I find that the [redacted] argument is without merit and does not provide any solid ground for [redacted]. Hearing Officer’s Decision & Order NYSED
Before concluding this analysis [redacted], I must highlight one more point.
Even if I were to accept the District’s argument
[redacted] (D-10 at 12).
It is true that, as a general rule, an IEP is not required [redacted] R.E. v. New York City Department of Education, 694 F.3d 167, 193-4 (2d Cir. 2012); R.E.B. v.
State of Hawaii Department of Education, 870 F.3d 1025,
1029 (9th Cir. 2017).
In my opinion, the present case [redacted].
This is not an academic issue [redacted] (T. at
1133). In addition, both [Redacted] and AED testified that [redacted] (T. at 1132-3, 2551-2).
If the Parents had decided [redacted].
To assure the Parents that [redacted], the District denied him a FAPE.
As a second line of argument, the District contends that [redacted].
Unfortunately, the weight of evidence in this case does not support this argument. After examining the record, I find that [redacted] Hearing Officer’s Decision & Order NYSED
I have reached this conclusion for the following reasons:
1) Although the parties disagree on many issues, they both agree that the Student [redacted](T. at 131,
2401-2). However, I find that [redacted]
Both the original IEP for the 2015-6 school year and the RR IEP established a goal [redacted](D-3 at 7, P-C at 9-10). However, the District’s evidence shows that [redacted] (D-22 at 5).
Although [redacted]. For example, [redacted] (D-38 at 1). In a [redacted] (T. at 1117).
And, as recently as [redacted](T. at 1009, 1173; D-
47 at 1). When the Parents’ counsel asked [Redacted]
whether it was correct that [redacted], she replied without qualification: “Correct” (T. at 1174).
The District’s use [redacted] For example, the District reported that [redacted] (D-21 at 5).
However, [redacted] (Id). [Redacted].
The District also submitted evidence [redacted](T.
at 790, D-49 at 1-4). However, this data [redacted](D-49 at 2). Hearing Officer’s Decision & Order NYSED
Despite [Redacted]’s claim [redacted](T. at 794-6,
1334, 1542, 1686).
The District’s claim [redacted] (T. at 3519).
It is true that as a general (but not absolute) rule
[redacted](Application of the New York City Department of Education, Appeal No. 14-121). However, [redacted]
As the Parent incisively pointed out in her direct examination, [redacted] (T. at 3477).
The District’s own actions before the May 2016 CSE meeting [redacted](D-5).
It is true that the District [redacted](D-11 at 1).
However, this explanation [redacted].
For example, [Redacted] testified [redacted](T. at
1176-7, D-19).
If [redacted], why did it [redacted]?
It is true that Parent [redacted](D-6). However,
[redacted](Id).
2) The hearing record shows that the [redacted] (T. at 201, 2158-9, 2732). Hearing Officer’s Decision & Order NYSED
The District’s own evidence shows that the Student
[redacted] (T. at 1990, D-22 at 2 ). In addition, [REDACTED] acknowledged that [redacted]T. 2170, 2192,
2283, 2293).
Even [REDACTED]’s claim that the Student [redacted]
(T. at 2048-9). [REDACTED] acknowledged that [redacted]
(T. at 1933).
In addition, the documentation on the record
[redacted](T. at 2045-6, D-56 at 6). Furthermore,
[redacted](D-56 at 5-6).
Casting further doubt [redacted] (T. at 3001). EC’s credible testimony supports [redacted] (T. at 4446-7).
The Parent’s credible testimony [redacted] The Student was [redacted], she said (T. at 3533).
I therefore conclude that the District failed to prove [redacted].
3) The District claims that, while the Student was at the Public School, [redacted] (T. at 84-5, 98, 197, 529, 531, 1085, 1297-9, 1306).
Although I credit that [redacted] in Endrew. For example, the District failed [redacted] Hearing Officer’s Decision & Order NYSED
Furthermore, [redacted]. Whether the Student is
[redacted]
When asked on cross-examination [redacted],
[Redacted] candidly answered, [redacted] (T. at 1119).
In summary, for the reason discussed above, I find that the District’s two main lines of argument against the Parents’ requested placement – [redacted]- are without merit.
Given these conclusions, the legal analysis under
Endrew leads inescapably to one conclusion. Since the AR
IEP fails to provide the Student [redacted] I must find that it is not “reasonably calculated to enable … [him]
to make progress appropriate in light of … [his]
circumstances.” Endrew, 137 S. Ct. at 999.
B. PRONG 1 – PROCEDURAL FAPE
The DPC accuses the District of committing a series of procedural violations in preparing the AR IEP.
Although the substantive violations discussed above provide more than ample grounds for nullifying the AR Hearing Officer’s Decision & Order NYSED
IEP, I shall discuss three procedural violations that I consider especially serious.
The DPC charges that [redacted] (P-B at 8). Although the DPC does not cite a particular law or regulation, I shall assume that [redacted].
Under this regulation [redacted]. In contrast,
[redacted].
The record provides abundant proof [redacted]. For example, CT testified that the Student was [redacted](T.
at 1609).
In addition, the IEP itself notes that [redacted]D-
10 at 7-8). However, it is not necessary to dwell on this issue, since another regulation [redacted].
This other regulation deals [redacted].
Read together and translated into plain English, these two regulations mean that [redacted].
Both CT’s testimony and the documentary record establish [redacted]. (T. at 1293; D-31). Therefore I find that the AR IEP violated [redacted]. Hearing Officer’s Decision & Order NYSED
The District might argue that [redacted] (T. at
1238). Although the [redacted], the argument has no legal merit.
To begin with there is no evidence either in the AR
IEP or the rest of the record to show that [redacted].
However, the argument is flawed for an even more fundamental reason.
[Redacted]. Since [redacted].
A recent decision by the Second Circuit supports this legal analysis. [Redacted]
In [redacted], the Court [redacted]. The Court disagreed with the SRO [redacted].
The logic of this decision applies with equal force to the present case and fatally undermines any effort by the District [redacted].
The Parents also allege that the District
[redacted]The Commissioner’s regulations provide
[redacted].
The parties do not dispute that
[redacted].[Redacted] testified that [redacted]. (T. at Hearing Officer’s Decision & Order NYSED
823; P-QQ). The Parent’s unchallenged testimony shows
[redacted] (T. at 3445).
In my opinion, it was inappropriate for the District to [redacted].
The Commissioner’s regulations themselves
acknowledge [redacted].
Thus, the District erred [redacted]. In addition,
[redacted].
The fact that [redacted](D-10 at 10). However,
[Redacted] admitted [redacted]. (T. at 1059).
I therefore find that [redacted].
The fact that the District [redacted]. (T. at 1033;
D-27).
In the DPC, the Parents also fault the District for
[redacted](P-B at 7).
Goal #6 on the AR IEP called for the Student
[redacted] ((D-10 at 10). The IEP established [redacted]
(Id.).
The AR IEP also established a short term
[redacted](Id.). [Redacted]. Hearing Officer’s Decision & Order NYSED
For purposes of this decision, [redacted] (T. at
1574-5).
In my opinion Goal #6 is inappropriate because
[redacted]. (D-3 at 7, P-C at 9-10). None of the District’s witnesses offered any explanation [redacted].
In Endrew, [redacted]. By taking [redacted].
Moreover, [redacted].
In my opinion, these three procedural violations, especially when taken in combination with the substantive defects discussed above, with which they are deeply intertwined, rise to the level of a denial of FAPE, because they involve the [redacted].
Given these glaring procedural and substantive defects, I find it unnecessary to discuss the other procedural issues raised in the DPC.
To sum up, I find that the AR IEP did not provide the Student with a FAPE and, accordingly, the District failed to meet its burden of proof under Prong 1.
C. PRONG 2
Hearing Officer’s Decision & Order NYSED
The courts have held that, in determining the appropriateness of a private placement, the parent is not required to show that the placement is perfect. Warrant
v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3rd Cir.
1999). The courts have cautioned, though, that the placement must still be “reasonably calculated to enable the child to receive educational benefits” and provide “educational instruction specifically designed to meet the unique needs of a handicapped child.” Frank G. v.
Board of Education, 454 F.3d 356, 364-5 (2d Cir. 2006).
Applying these principles to the facts of the present case, I find that the Parents have proven to the preponderance of credible evidence that the Student’s placement at the Private School of the 2016-17 school year was appropriate.
The evidence presented by the Parents at the hearing shows that the Private School [redacted].
The evidence also establishes that [redacted] (T. at
2882-3, 3791, 3948). All of the Student’s instructors
[redacted] (T. at 2376, 3904-6). Hearing Officer’s Decision & Order NYSED
Referring to the Student’s class schedule, AED testified that [redacted].(T. at 2880-1, P-JJJ). Thus, in addition to providing the Student [redacted].
I further find that the Student’s program [redacted]
Frank G., 454 F.3d at 364-5. For example, [redacted] (T.
at 2692, 2696-8, P-FFF at 1, 3, P-AAAA at 1-2).
When the [redacted] (T. at 2829, 3690-1, 3985; P-GGG at 3). By making this [redacted].
Likewise, [redacted] (T. at 2999, 3001-2, 3008; P-
KKK, P-GGG at 3).
In the area of [redacted] (T. at 3815-6). In addition, the classroom [redacted] (T. at 2832, 4052-4).
The Private School provides the Student [redacted].
In addition, [redacted](T. at 4241-3).
Although HP [redacted] (T. at 4229, 4245-6, 4295).
The hearing record also shows that the Private School [redacted] (T. at 3914).
Further, although the Parents are not required
[redacted]. Hearing Officer’s Decision & Order NYSED
After reviewing AED’s testimony and the supporting documentary evidence, I find that [redacted] (T. at 3051,
3702; P-IIII at 3-5, P-JJJJ, P-KKKK).
Unfortunately, it is difficult [redacted].
For example, [redacted] (D-21 at 3). In contrast,
[redacted] (P-FFF at 1).
The hearing record shows that [redacted] (T. at
3716-20, P-MMMM at 1-2). The Parent credibly reported
[redacted] (T. at 4078).
With respect [redacted] (T. at 3720-49; P-OOOO through P-VVVV).
However, in evaluating [redacted].
Accordingly, for all the reasons discussed above, I find that the unilateral placement was appropriate and that the Parents have met their burden of proof under Prong 2. The only remaining issue is whether equitable considerations bar the relief sought by the Parents.
D. PRONG 3
As to Prong 3, I find that the equities favor the Parents, since they participated fully in the CSE meeting Hearing Officer’s Decision & Order NYSED held on May 10, 2016. In addition, they gave the District far more advance written notice of their intent to unilaterally place the Student in the Private School than the 10 business days required under Federal law (D-27).
24 CFR §300.148(d)(1)(ii).
Since the Parents did not [redacted].
Although the District submitted evidence purporting to show that the Parents were uncooperative in scheduling the RR meeting, which occurred on May 10, 2016, I find that this evidence is irrelevant for purposes of this Prong 3 analysis (D-11 at 1, D-33 at 1-19).
Regardless of who caused the delays, the purpose of the RR meeting was to review the Student’s IEP for the 2015-16 school year. However, that IEP is not at issue in this case. Only the AR IEP is under challenge.
Therefore, even if some or all of the delays were chargeable to the Parents, it has no bearing on this case.
V. ORDER
Hearing Officer’s Decision & Order NYSED
Since the Parents have met all 3 prongs of the Burlington test, I shall order the District to pay the Student’s tuition costs at Private School for the 2016-17 school year in the prorated amount of [redacted], as specified in the Parents’ tuition contract with the Private School (P-NN at 1).
The contract also lists a [redacted] (Id). I am disallowing this charge, because the Parents, who bear the burden of proof on Prong 2, [redacted].
I am also granting the Parents’ request for direct funding, based on the Parents’ credible testimony about the [redacvted] (T. at 4342), Connors v. Mills, 34 F.
Supp.2d 795 (NDNY 1998).
The Parents’ request that the District pay for the Student’s transportation expenses to and from the Private School in the 2016-17 school year is denied on grounds of mootness, since the school year is now over and no evidence of out-of-pocket expenses was submitted.
Accordingly, I hereby order as follows: Hearing Officer’s Decision & Order NYSED
(1) The District shall pay the prorated cost of the Student’s tuition at the Private School for the 2016-17 school year in the amount of [redacted].
(2) To the extent that any part of the tuition cost has not already been paid by the Parents, the District shall directly pay the remaining balance to the Private
School.
(3) To the extent that the tuition cost has been paid in whole or in part by the Parents, the District shall reimburse them for such payments upon submission of proof of payment.
(4) The Parents’ claim for [redacted] is denied.
(5) The Parents’ demand that the District pay for the Student’s transportation to and from the Private School during the 2016-17 school year is denied.
(6) Any claims for relief not specifically granted in this Order shall be deemed to have been denied.
PLEASE SEE ATTACHED PAGE FOR IMPORTANT INFORMATION
REGARDING YOUR APPEAL RIGHTS.
Robert L. Nisely, Esq. Hearing Officer’s Decision & Order NYSED
Impartial Hearing Officer
Dated: February 12, 2018
WITNESSES
DISTRICT
[Redacted], CSE Chairman
[Redacted], Director of Student Services
[Redacted}, School [redacted]
[Redacted], Classroom Teacher
[Redacted], [Redacted]
[Redacted], [Redacted]]
PARENTS
[Redacted], [Redacted] of Private School
[Redacted], Parent
[Redacterd], [Redacted].
[Redacted], [Redacted]
[Redacted], [Redacted]
[Redacted], [Redacted] Consultant Hearing Officer’s Decision & Order NYSED
PAGE LEFT BLANK
Hearing Officer’s Decision & Order NYSED
IHO EXHIBITS
I Letter of Appointment, dated July 6, 2016
II Notice of Hearing for telephonic conference, dated October 13, 2016
III Notice of Hearing, dated November 11, 2016
IV Forms for extending compliance deadline, various dates
DISTSRICT’S EXHIBITS
#1 Withdrawn
#2-62 [Redacted]
#63 Photocopy [redacted] (1 page)
PARENTS’ EXHIBITS
A-C [Redacted]
D Withdrawn
E-F [Redacted]
G-J Withdrawn
K [Redacted]
Hearing Officer’s Decision & Order
NYSED
L-N Withdrawn
O-P [Redacted]
Q-R Withdrawn
S-W [Redacted]
X Withdrawn
Y-DD [Redacted]
EE-FF Withdrawn
GG-PPP [Redacted]
QQQ Withdrawn
RRR-VVVV [Redacted]
WWWW [Redacted](consisting of 6 pages)
XXXX [Redacted](consisting of 7 pages)
YYYY [Redacted] (consisting of 4 pages)
ZZZZ [Redacted] (consisting of 6 pages)
AAAAA [Redacted] (consisting of 28 pages)
BBBBB [Redacted] (consisting of 15 pages)
CCCCC [Redacted](consisting of 3 pages)
DDDDD [Redacted] (consisting of 6 pages)