NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 157288
Student’s Name:
Date of Birth:
Hearing Requested By: Parent
Date of Hearing: December 4, 2015
January 12, 2016
Actual Record Closed Date: January 22, 2016
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2015
Attorney — Student
Parents
Representative — DOE
(Via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2016
Attorney — Student
Parents
(Via Telephone) — Student
Teacher (Via Telephone) — Student
Teacher (Via Telephone) — Student
District Representative — DOE
The parents of filed a request for an impartial hearing on September 8, 2015, for the purpose of seeking tuition reimbursement for their unilateral placement of at (hereinafter “ ”) with the for the 2015-2016 school year, the cost of related services and/or RSA’s for the period from September 2015 through June 30, 2016 and for the costs of evaluations.[1] I was designated to hear this matter on September 9, 2015, pursuant to 20 U.S.C. Section
1415(f)(1). An impartial hearing was held on December 4, 2015 and January 12, 2016.
The compliance date was extended on three occasions due to unavailability of witnesses and to obtain the transcript, with a final compliance date of February 18, 2016. (IHO Ex.
I, II, III).
DEPARTMENT OF EDUCATION (“DOE”) POSITION
The Department of Education’s (“DOE’s”) position is that the program recommended by the Committee on Special Education (“CSE”) ( with per week; and ) is appropriate. (Tr. p.
11).
PARENT’S POSITION
The parent’s position is that the program recommended by the DOE was inappropriate, as ’s needs cannot be implemented in the proposed program, and the IEP goals were inadequate. (DOE Ex. 1). The parents maintain that the parental placement is appropriate, and that the parents are entitled to be reimbursed for tuition and expenses associated with the parental placement. (DOE Ex. 1; Tr. pp. 124-
125).
EVIDENCE AT HEARING
is a student who attended through the
. (DOE Ex. 3). Ms. , ’s mother, testified that from the through the , had , , and . (Tr. p. 55). She
testified that
. She stated that
; and that . (Tr. p. 61).
On October 30, 2014, Ms. wrote to ’s teacher, with her concerns about ’s . His teacher responded that
, and that
. She wrote that
. (Par. Ex. M).
In October 2014, when was an student at
, the parent obtained a private evaluation from ,a at the . (Tr. p. 71; DOE Ex. 2)
testified that had well-developed ; however he had weaknesses in his , difficulty with ,
, which impacts his . (Tr.
pp. 72-73). His also affects his ability to and . (Tr. p. 75). also had as well as
(
.) (Tr. p. 76;
DOE Ex. 2).
’s was consistent with the results
of her testing, in terms of his and , as well as his . (Tr. pp. 76-77). She recommended that be placed in a with a .
(Tr. p. 78). Specific recommendations included placement in a
, with
; and , ; and
including and . (DOE Ex. 2).
In a letter dated December 9, 2014, , a , diagnosed
with (“ ”),
She recommended a that could provide him
, and
. (Par. Ex. G). On February 6, 2015, Ms. sent a letter to the Committee on Special Education (“CSE”) requesting an Individualized Education Plan (“IEP”). (DOE
Ex. 3).
A was performed on March 5, 2015. (DOE Ex. 10). It was reported that receives , and needs . It was further reported that he . (DOE Ex. 9).
Ms. testified that during the , . On one
occasion, . On another occasion,
. She testified that
. (Tr. pp. 58-59)
The CSE conducted a of on March 13, 2015, in an . At one point, ; however .
. . (DOE Ex. 5).
In a report dated March 16, 2015, ’s teacher reported that . She reported that .
In , he , including and .
She reported that . (DOE Ex. 7).
On March 30, 2015, the CSE met and determined that was eligible for Special Education, and classified him as . (DOE Ex. 11).2
, a who participated in the meeting, testified that was a with a . (Tr. p. 17). She noted that was diagnosed with ; however he was able to , and . (Tr. pp. 18-19). She acknowledged that did cause him to The classification was not disputed. (Tr. p. 30).
, so that he . (Tr. p. 22).
At times he would . (Tr. p. 34). He
; and . (Tr. p. 23). He also had
. (Tr. p. 24).
The CSE concluded that , and that
. Accordingly, no goals
were developed. (Tr. p. 27). Two goals were developed;
,
and . (DOE. Ex. 6-7)
The CSE recommended per week; and
. (Id. at 8).
As needs, the CSE recommended , including and . (Id. at 4; Tr. p. 29). It also recommended
, , , ,
, and . (Id. at 5).
Ms. testified that the CSE concluded that since was , , the appropriate program was , with . (Tr. p. 31). She testified that classes had approximately . (Tr. p. 33).
On February 28, 2015, the parents signed a contract enrolling at for the 2015-2016 school year, with an annual tuition of , plus an additional for the ; a fee of (
3
); and a fee of . (Par. Ex. N).
On August 25, 2015, the parent wrote to the CSE stating that she disagreed with the recommended program, and that she intended to unilaterally place at
3
The fee is a mandatory deposit to . The parent seeks reimbursement for the , to the extent it was applied to the current school year. (Tr. p. 127). She testified that the deposit was used to ( )
; . (Tr. p. 129).The fee (
) . (Tr. pp. 131, 133). The DOE challenges both the fee and the , as items which should not be reimbursed, even if the parent prevails with respect to tuition reimbursement. (Tr. p .126).
and seek public funding. (Par. Ex. I).
, the of swore, (in an affidavit
dated October 28, 2015), that during the 2015-2016 school year, the school has approximately students. (Par. Ex. J.) He stated that approximately of the students are enrolled in the , which provides
.
.
.
(Id. at 2).
utilizes , so that
. . Classes consist of students. (Id. at 1).
, a teacher certified in , testified
that she is ’s teacher. She sees
and . She
. (Tr. pp. 109-110). ’s teachers report that
. (Tr. p. 116). has difficulty with
. has a
. (Tr. p. 110). He is provided with
. has benefited from . (Tr. p. 111-112). For
, is taught
. (Tr. pl. 113). He also receives
. (Tr. p. 114)..
Ms. testified that would have difficulty
, as he needs . (Tr. pp. 117-118). She
testified that is an appropriate setting for him, since it is , and is placed in the appropriate , where teachers are able to . (Tr. p. 117).
, an teacher at , testified that is a student in his class. The class consists of students, and is designated as the . (Tr. p. 89). He testified that the class . He testified that has difficulty with (Tr. p. 90). . Mr.
provides . (Tr. p.
92). He also provides . (Tr. p. 99). He described ’s improvement in , and
. (Tr. p. 94).
To address ’s , he provides with
, and . He
. (Tr. p. 95). He opined that would be
. (Tr. pp. 97-98).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
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 be 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. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter, to 510
US. (1993).
APPROPRIATENESS OF THE RECOMMENDED PROGRAM
I find that the DOE failed to meet its burden of proving the appropriateness of the recommended program. Although it is undisputed that has many strengths
, and that he was able to ,
, the record supports the parent’s position that
.
found that he had , as well as
. During his , and . His affected his ability to . His was observed by his teachers at the public school and at . , and . To address his difficulty with , was . I credit Ms. that he , and that
.
I also agree with the parents, that ’s needs, as described in the IEP, could not be appropriately implemented in a . I find that, consistent with the recommendations of and , should have been recommended for placement in a class setting with ,
with and .
APPROPRIATENESS OF PARENTAL PLACEMENT
To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).
I find that the parents satisfied their burden of proving that the in combination with the at provides with educational instruction specially designed to meet his unique needs. has difficulty with .
Consistent with the recommendations of , is being educated in
, , with
. ’s placement in
, provides him .
EQUITABLE CONSIDERATIONS
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger
v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
The record indicates that the parent cooperated with the school district by sharing evaluations, participating in the IEP meeting, and by notifying the CSE of her intent to enroll at and and seek public funding.
In addition to being entitled to be reimbursed for their tuition expenses, the parents are entitled to reimbursement for the fee and the (to the extent it was applied during the current school year). See Application of a Student with a Disability, Appeal No. 14-033.
ORDER
Therefore, it is hereby ordered that the DOE shall reimburse the parents (upon presentation of proof of payment thereof) for ’s tuition at for the 2015- 2016 school year, including the . The parents shall also be reimbursed, upon presentation of proof of payment thereof, for the fee and for the of (to the extent it was used for expenses incurred during the 2015-2016 school year).
Dated: January 26, 2016
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL:
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
C , 2014/2015, 10/1/14, 3 pages
D , 3/13/15, 2 pages
E Parent , 10/10/14, 2 pages
G Summary, 12/9/14, 2 pages
H Document and Letter, 2/11/14, 2 pages
I Parent Correspondence to CSE, 8/25/15, 1 page
J Affidavit of , 10/28/15, 4 pages
K Report Card, 11/5/15, 1 page
L E-mails, dated September-October '14, 6 pages
M E-mails, dated 10/30/14, 2 pages
N Contract '15-'16, 4 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 Due Process Complaint, 9/8/15, 8 pages
2 , 10/25/14, 23 pages
3 Parent Referral, 2/6/15, 1 page
4 , 3/5/15, 2 pages
5 , 3/13/15, 2 pages
6 Parent Notice, 3/14/15, 2 page
7 Teacher Report, 3/16/15, 2 pages
8 Teacher Report, undated, 2 pages
9 , 3/19/15, 3 pages
10 , 4/2/15, 5 pages
11 IEP, 3/30/15, 14 pages
12 Prior Written Notice, 4/2/15, 4 pages
13 Consent for Services Form, 4/13/15, 3 pages
IMPARTIAL HEARING OFFICER
I Case Follow-Up Sheet, 11/2/15, 1 page
II Case Follow-Up Sheet, 12/4/15, 1 page
III Case Follow-Up Sheet, 1/12/16, 1 page
Footnotes
[1] The parents’ request for reimbursement for evaluations and related services was later withdrawn. (Tr. p. 68).