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FINDINGS OF FACT AND DECISION
Case Number: 157684
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 14, 2016
Actual Record Closed Date: March 22, 2016
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2016
Attorney — Student
Parent/Mother — Student
Chairperson's Designee — DOE
By Amended Due Process Complaint dated October 1, 2015, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The Complaint alleges a wide range of FAPE violations relating to the 2015-2016 school year. As relief, the parent requested tuition reimbursement for
.
Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect.
200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is a who is eligible for services as a student with . (Exh. D) His is the range, with . (Exh. D) His . (Exh.
D) He has as well as
. (Exhs. L, M) He also has
. (Exh. M) His IEP from August, 2015 contains such as , , and . (Exh. D)
It also recommends a with related services of ,
, and . (Exh. D)
At a school that also provides a for
, the Student is in
. This program provides for the Student
and then
and ( ) for . (Exh. M) Ms.
provides to assist with the Student’s and
, including and . He
has made progress in the school thus far during the school year. (Exhs. L, M)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are 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. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect.
300.513(a)(2).
A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are 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. 20 U.S.C.
Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District may be required to pay for educational services obtained for a student by a student’s parent if the services offered by the District are inadequate or inappropriate (“first criterion,”) the services selected by the parents are appropriate (“second criterion”), and equitable considerations support the parents’ claim (“third criterion”), even if the private school in which the parents have placed the child is unapproved. School
Committee of the Town of Burlington v. Dep’t of Education, Massachusetts, 471 U.S.
359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7
(1993).
The District concedes FAPE denial in this case. Under the circumstances, I need not address the parent’s contentions. I find that the Department denied the Student a FAPE for the 2015-2016 school year.
On the second criterion, the test for a parents’ placement is “not perfection.” M.S.
ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The documents and testimony in this uncontested case establishes that the program provides to address the Student’s special education needs. The school offers the to provide and more individualized instruction and additional help, in particular in regard to . The record also establishes that the Student has done well at the school and is benefitting from it. The parent prevails on the second criterion.
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect.
1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, 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.
Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect.
1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.
There no dispute that the parent has acted appropriately throughout the process, and there is no dispute on equities here. The parent is awarded direct payment and/or tuition reimbursement for for the 2015-2016 school year, including if not provided by the District. The total amount is . It is so ordered.
Dated: April 5, 2016
MichaelS. Lazan, Esq.
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL:
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 9/10/2015, 7 pages
B Amended Impartial Hearing Request dated 10/1/2015, 8 pages
C Individualized Education Program dated 4/20/2015, 20 pages
D Individualized Education Program dated 8/20/2015, 15 pages
E Correspondences from Parent to CSE dated 8/25/15 and 9/15/15, 3 pages
F Evaluation dated November 2014, 14 pages
G Affidavit of dated 1/19/2016, 4 pages
H Report Card dated 12/23/2015, 1 page
I Contract dated 3/5/2015, 4 pages
J Proof of Payment Cashier's Check Receipt dated 3/5/2015, 1 page
K Parent Correspondence to CSE dated 6/11/2015, 1 pages
L Affidavit of dated 3/8/2016, 5 pages
M Affidavit of dated 3/8/2014 3 pages