New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156692

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 15, 2015

November 3, 2015

Actual Record Closed Date: February 10, 2016

Hearing Officer: Theresa Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 15, 2015

For the Student:

Attorney

Parent/Father

For the Department of Education:

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 3, 2015

For the Student:

Parent Attorney

Parent (Via Telephone)

For the Department of Education:

District Representative

This matter came before me on October 15 and November 3, 2015, pursuant to the Individuals with Disabilities Education Act (IDEA). The timelines were extended each hearing day, to accommodate the witness’ testimony and closing briefs. Appended to the record are lists of persons in attendance and documents submitted into the record.

BACKGROUND

The student hereinafter shall be referred to as The Committee on Special Education (CSE) convened on May 1, 2015, to develop an Individualized Education Services Program (IESP) for the student, who was at the time. The CSE classified the student as. The CSE recommended related services,,, a week, for and ( ),, times per week. (IHO Ex. 2)

The parent filed his Due Process Complaint (DPC) on July 29, 2015. The father alleged that the Department of Education (DOE) failed to offer his son a “free appropriate public education” (FAPE) on procedural as well as substantive grounds. (Ex. A) The parent wrote the CSE in January, 2015, informing them that he and his wife have been privately providing special education services for their son for several years and were now seeking the assistance of the Board of Education. (Ex. B) The father is seeking an order requiring the district to reimburse him for the unilateral provision of and to his son, from January 2015 through June 30, 2016.

THE DEPARTMENT OF EDUCATION’S CASE

The Department of Education through its representative, Mr., agreed to the compensatory services that were requested by the parent. His sole objection to the services requested was the enhanced rate. (T. at 4) Also, he stated that said services were properly calculated from January, 2015 forward. (T. at 9) Mr. stated that the DOE would not present any witnesses or documentary evidence, on the second and final hearing day. (T. 18-19) Subsequently, Mr. took issue regarding when the services should have commenced. (T. at 29) Also, he stated that the student’s Individualized Education Program (IEP) was for a. (T. at 63) Mr. submitted a Motion to Dismiss in lieu of a closing brief. He argues, inter alia, that the parent did not seek a public school placement and never requested an IEP. The student’s requested special education services are governed by NYS Education Law, Section 3602-C.

THE PARENT’S CASE

The parent was represented by Mr.. The father was the sole witness presented and documentary evidence was submitted labeled A through G.

The father testified that he sent a referral to the CSE for his son on or about January 5, 2015 along with a history of the student’s evaluation. The DOE informed him sometime after the IEP meeting that they were unable to identify any providers for the and the. Thereafter, he obtained a list of approved DOE providers of related services. He contacted approximately 15 to 18 of the providers; none of them was available. He secured Ms. to provide starting January, 2015 at the rate of. per session and continued the services from January onward. He has paid her from January through August, 2015 and he has submitted copies of the invoices with cancelled checks.(T. 37-38 and 39-41) (Ex. Also, he obtained services in January, 2015. The, and were on the district’s list and he thought that the district paid them through June. He has made payments to but not to the other provider. He noted that the IESP did not provide for. (T. 43-45; Ex.G) The DOE never contacted him to tell him that they found providers for his son.

(T. at 46) He testified that he was not aware that he had not received the IEP until recently. However, he knew from the IEP meeting the services his child was to receive and that were not recommended. He received Related Services Authorizations (RSAs) from the DOE in May, 2015. (T. 51-53)

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).3 An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).

A FAPE is offered to a student when the board of education (a) complied 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. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).

The Second Circuit has determined that "a school district fulfills it substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]); in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

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, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192). 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 (Burlington, 471 U.S. at 370-71). "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 IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA allows that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [FAPE] available to the child in a timely manner prior to that enrollment"(20 U.S.C. § 1412 [a][10][C][ii])(emphasis added).

I have reviewed all the testimonial and documentary evidence. The parent has alleged that the DOE has failed to provide his son with a FAPE on procedural and substantive grounds.

Federal and state law mandates that “the local educational agency” is responsible for ensuring that all children with disabilities within its jurisdiction are identified, located, and evaluated, including children in all public and private agencies and institutions within that jurisdiction.” The statue imposes an affirmative duty on the state to identify, locate and evaluate all children who are disabled, residing in the state. 20 U.S.C. Section1412[a][3][A; 34 CFR300.111; 8 NYCRR 200.2[a]. (Hereinafter, referred to as “child find obligations”) New York law mandates that for a student not previously identified as having a disability that the CSE shall provide a recommendation to the board of education which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the receipt of consent to evaluate. (8 NYCRR200.4[d]. The IDEA provides for impartial hearings and State-level reviews in matters relating to the identification, evaluation or educational placement of students, or the provision of a FAPE ( 20 u.S.c. Section1415[b][6][A]; 34C.F.R. Section 300.507[a][1]; 8 NYCRR 200.5[i][1], [j][1]. (Application of a Child with a Disability, Appeal No.10-129)

The record shows that the father requested that the District evaluate his son; the request was by letter dated January 5, 2015. ( T. 37-38; Ex. B) The District does not offer any explanation as to why it took approximately four months to address the student’s special education service needs. The district does not allege the parent delayed providing consent. (T. at 29) Moreover, Mr. fully acknowledged several times throughout the record that the requested services, and were recommended and owed to the student. (T. at 4, 8, 18 and at 29) He objected to the enhanced rate, agreed the services should be covered from January, 2015. (T. at 9) Also, he noted that the student had a IEP. ( T. at 63) Subsequently, he changed his position regarding the start date. (T. at 29) Mr. agreed to provide the May, 2015 IEP and other documents after the end of the second hearing day.

On or about November 3, 2016, Mr. emailed myself and Mr. an IESP along with a evaluation. It should be noted that throughout the two days of hearings and via correspondence between the father and Ms., the who participated at the CSE meeting, everyone referred to an IEP not an IESP. (Exs. A and B attached to the parent’s brief.) It is abundantly clear that the parties all understood and expected that an IEP would be developed for the student. There is no evidence in the record addressing why an IESP was developed and nothing in the record to suggest the father requested an IESP. Also, no proof of mailing was submitted regarding the IESP.

The evidence shows that the parent affirmatively requested that the district evaluate his son and determine whether he was eligible for a special education program and services under the IDEA. The parent participated in the CSE process to develop an educational program and services for the school years at issue. The parent testified that he had never received the May, 2015 IEP. There is no evidence in the record that the parent attempted to dually enroll the student pursuant to Education Law Section 3602-c. or that the parent was requesting special education services on an equitable basis. In addition, the record is devoid of any Parent Notice as required under Educ. Law Section3602-c[2] and the parties have not asserted that there are any exceptions to the June 1 deadline applicable to this matter. “The district may not presume a student is dually enrolled student in the absence of a parent’s request.”. (Application of a Child with a Disability, Appeal No. 11-030)

Based on the foregoing, I find that the district failed to provide the student with a FAPE on both procedural and substantive grounds, for the 2014-2015 and 2015-2016 school years. The district’s Motion to Dismiss is denied.

Next, the parent argues that the services provided to the student are appropriate. It is undisputed that the student was entitled to times per week, for each session and weekly, sessions. ( IHO Ex. 2 and Ex. C) The father testified that that the DOE informed him sometime after the CSE meeting that they were unable to identify any providers for the recommended services and provided him with a list of DOE approved providers. He affirmed that he conducted a diligent search to find approved DOE providers; he contacted 15-18 DOE providers; none of the providers were available. The father stated that he retained Ms., a, to provide to his son at a rate of. per session. She was not on the approved list. Also, he obtained services from two providers, and. He believed that both providers were approved DOE providers. He has made payments to Ms. and to. The recommended services commenced in January, 2015 through the summer and continue up to the present. (T. 39-42 and 43-45) (Exs. D, F and G)

The father acknowledged that the IESP did not provide for; he noted that he was told by the DOE that if he went along with the recommendation on that the would be approved. (T. at 44) However, there is no objective evidence to support summer services. The IESP indicates that services shall commence from May 4, 2015 and does not indicate. The RSA indicates services shall not go beyond. ( Ex. C) The record shows that the father obtained and services in accordance with the IESP and he selected qualified providers. Clearly, were not approved by the district. services were recommended to be provided; the record shows that services were provided. However, the father reached out to numerous providers; none were available. The father stated that the both services started in January, 2015. Mr. agreed that the services were owed from January, 2015 and then changed his position stating the district had 60 days to evaluate. (T. at 9 and at 29)

Accordingly, I find that the specific services, and, selected by the parents were appropriate; the parent has met his burden. However, I find that the provided were not covered under the IESP or any other document or agreement.

In addition, the record supports that the services should have begun within 60 school days of receiving parental consent for the evaluation. There is nothing in the record to indicate that the delay in developing an educational plan for the student was in any way caused by the parent. Therefore, the start date for the services shall be calculated approximately 60 school days from the receipt of the request for evaluation on or about January 5, 2015. The start date for services shall be calculated from April 6, 2015.

Based upon the parent’s actions, in terms of equitable considerations, I find that the parent cooperated with the district and that equitable considerations favor the parent.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the district shall, reimburse the parent’s costs for at. per hour, commencing from April, 2015 through June, 2015 and from September, 2015 forward or until such time the district makes direct payments to Ms.. services shall be reimbursed at. per session, as paid from April, 2015 until the district started paying the provider directly, excluding the months of July and August. Reimbursement for related services shall cover the 2014-2015 and 2015-2016 school years. Reimbursement is subject to reasonable proof of payment and attendance.

Dated: March 1, 2016

THERESA JOYNER, ESQ.

Impartial Hearing Officer

TJ:

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

PARENT

A Impartial Hearing Request, dated 7/29/15, 4 pages

B Correspondence from Parent to CSE, dated 1/5/15, 2 pages

C Correspondence from CSE to Parent, transmitting RSAs, dated 5/18/15, 7 pages

D Invoices from , dated 1/23/15-8/4/15, 14 pages

E Proof of payment to , dated 1/22/15-8/25/15, 11 pages

F 's resume, undated, 2 pages

G Invoices from service, dated 1/28/15-4/20/15, 4 pages

IMPARTIAL HEARING OFFICER EXHIBITS

No. Date Document Pages

1 Misc. dates Compliance Decisions 4

2. 5/1/15 IESP 10

3. 11/23/15 Parent’s Closing Brief 6

4. 11/23/15 DOE’s Motion to Dismiss 8

5. 1/27/16(Rec’d 2/10) Parents Reply Brief with Exhibits 18