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FINDINGS OF FACT AND DECISION
Case Number: 157950
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 10, 2015
Actual Record Closed Date: January 7, 2016
Hearing Officer: Vanessa M. Gronbach, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2015
Attorney — Student
Parents
(Via Telephone) — Student
CSE representative — DOE
INTRODUCTION
This matter comes before the undersigned Impartial Hearing Officer (“IHO”)
through the Parents’ Due Process Complaint filed on or about September 21, 2015 (P-Ex.
A).[1] I was appointed shortly thereafter.
A pre-hearing conference was held on November 17, 2015, and the hearing was held on December 10, 2015 (See, Transcript).[2] The Parents were represented by counsel, and the District was represented by a CSE Chairperson Designee. The Parents are seeking direct funding for the unilateral placement of the Student at the during the 2015/16 school year. The District did not enter any records into evidence, or have any witnesses testify, instead it conceded prong one of Burlington-Carter. The
Parents entered into evidence exhibits A through N3 and presented two witnesses:
, , and the Parent.
The Hearing concluded in one day and the record closed on January 7, 2016. The
Parents submitted a closing brief. The District did not.
BACKGROUND
The Student is and currently attending the ,a private school, not approved by the New York State Education Department for the provision of special education services. (P-Ex. A, K; T. 92). He is diagnosed with
(P-Ex. H,I; T. 95).
The Parent filed a Due Process Complaint based on the Districts failure to provide the Student with a Free Appropriate Public Education (“FAPE”) for the 2015/16 school year (P-Ex. A). At the commencement of the hearing the District conceded that it failed to provide the Student with FAPE (T. 13, 15). The District did however, contest the as an appropriate placement and argued that the equities favored the
District.
ISSUES
The Parent is requesting direct funding for the unilateral placement of the Student at the for the 2015/16 school year, based the District’s denial of FAPE. The District has conceded that it failed to provide the Student with FAPE, but argues that the is not an appropriate placement and that the equities weigh in favor of the District.
FINDINGS OF FACT
The Student was , (T.92). From the age of , through , the Student received related services in the form of , and , to assist the Student with ,
(T. 92-93). The Student continued to receive
services through from the ages of to (T. 93). Upon aging out of the Committee on Pre-School Special Education, the Student transitioned to the Committee on Special Education (“CSE”) and continued to receive services in a program for , in until the age of , the 2014/15 school year (T.95-96, 97). The Student is diagnosed with and is described as having
(P-Ex. H, I; T. 28, 95).
During the 2014/15 school year, the Parent did not see the progress she expected to see in his recommended program (T. 97). The Parent complained to the teacher and that the Student was ,
(T. 97). She spoke to the teacher about and , but it did not change (T.98-
99). In a letter dated June 2015, the Parent requested that the CSE convene to review the Student’s program, but when the CSE met they recommended the same program (P-Ex.
M; T. 99-100).
The Parent then looked into the . She was aware of the school through recommendations and had originally looked at the school when the Student was (T. 100). After being interviewed and evaluated, the Student was accepted into the program and the Parents unilaterally placed the Student at the school for the 2015/16 school year (101).
The is a that serves
(T. 24). The mission of the school
is that
(T. 24). The school focuses on
;
; and (T. 24).
The school currently has an enrollment of with ages ranging from to (T. 25). Placement is determined by the students’ which provides them with an individualized curriculum that provides for their needs (T. 26). The students have many opportunities for and (T 38). The
Student is currently in a class with students, and (T. 25,
36). The students in his class are between the ages of to (T. 58).
In order to determine if the Student would be appropriately served at the school he was given an evaluation, the
(P-Ex. N; T. 27). Mr. used the because it assesses
, which allow the school to get accurate information about the Student’s needs and create an individualized curriculum (T.29-30). With the results of the evaluation, they had a benchmark of where to start. The teachers could place him in an appropriate group, individualize his instruction and create his curriculum in
(T. 31, 81). He is currently in a class with other students, , and all with ranging from to
(T. 27, 36, 47). He receives and (T.54).
, the Student entered the school at a level in (T. 28, 31). To address , they use the , which teaches , , which leads to (T. 33). It is described as a (T. 34). Using the , the Student has demonstrated progress with (T.35, 39, 105).
To address , the school uses the , a ,
(T. 48). He has demonstrated progress in as well, where he was unable to in the beginning of the year and now he is able to (T.48, 104). He had at the beginning of the year, and now he has learned (T. 50, 104). He has a (T. 50). They are also teaching him about . In September he was able to . Now he is able to
(T. 52).
also addresses and in those with and (T. 55). The program they use is called , which uses (T.59). is and students are able to
(T. 55-57) 4. In the beginning, the Student was (T. 28, 102). Now, the Student has become and and (T.57, 59-60, 102). His and he is (T.
102-103).
also provides the Student with the related services that were recommended on his Individual Education Program (“IEP”) specifically,
, and (P-Ex. F; T. 41). The service providers work with and communicate with the teacher in the classroom (T. 41-
42).
There are students in the , all between the ages of (T. 57).
The Student is working with a times a week, and (P-Ex. G; T. 86). They are working on the Student’s (P-Ex. G; T. 43). The also addresses
(P-Ex. G). The goals address:
(P-
Ex. G). Thus far, the Student has demonstrated progress in his ability to
(T. 43).
The Student has been working with an a week, and (P-Ex. H; T.86). addresses
(P-Ex. H; T. 45). His and he requires
(P-
Ex. H). The Student has demonstrated progress with his in that he is now able to where in September he was unable to (P-Ex. H;
T. 45). He is currently working on
, such as
(P-Ex. H). For , the school uses the
, which is a to teach (T. 46). He demonstrated progress in where in September he was only able to . He is now able to
(T. 47).
With regard to , the Student is also receiving this service at the school (P-Ex. I; T. 85). The Student , which is being address by the
(P-Ex. I). In this area, he has made slow and inconsistent progress (P-Ex. I).
At they also teach and
(T. 60, 62). In the beginning of the year he was able to
(T. 31).Thus far, the Student has (T.62, 64). They are , which entails
(T. 60-61). They also
(T. 66-67).
To address , they provide the Student with a and . The parents are able to and
(T. 75, 104-105).
In order to individualize the program and curriculum to the Student, daily assessments are recorded by the teacher, and Mr. , the , gives a formal assessment three times a year, using the (T. 78). They are able to compare and record his progress using the same assessment throughout the year (T.78).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick
Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and
6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.
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 parents were appropriate, and equitable considerations support the parents’ claim.
See, Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985).
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 (471 U.S. at 370-71). See also, Gagliardo v. Arlington Central Sch. Dt., 489 F.3d 105,
111. “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 offered the student a FAPE” (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c].
Here, the District has conceded Prong 1, therefore conceding that it did not provide the Student with FAPE during the 2015/16 school year. The Parents now bear the burden of proving that the private school is appropriate.
Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd.
of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C.
§ 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate 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.”
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
In the instant matter, the District has conceded FAPE and now the burden shifts to the Parents to prove the appropriateness of the . After reviewing the testimony and evidence provided, I find that they have met that burden. The Student is in a class with but still gets the opportunity to
(T. 68). He has received , as well as (T.54). They individualize the program to meet the Students needs with daily assessments and review of progress (T. 68). They address , specifically , where he has demonstrated progress since the beginning of the year (T. 33-39, 48-52, 104-
105). They address and , again areas that he has shown progress (T.55-60, 102). With respect to the student's progress at , a finding of progress is not required for a determination that a student's unilateral placement is adequate. However, a finding of progress is, nevertheless, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). I find that the Student has demonstrated progress many areas (T. 68, 79-80). Additionally, the Student is receiving related services in the areas of , and where they are also addressing his individual needs (P-Ex. G, H, I). And finally, they also address and provide by providing the Student and Parents
(T. 75, 104-105).
With regard to the Parents request for direct funding, the parent bears the burden of production and persuasion with respect to whether the parent has the financial resources to “front” the costs of the private school and whether they are legally obligated for the student’s tuition payments. See, Application of _____, Appeal No. 14-112; see also, Student with a Disability, Appeal No. 12-036; Application of a Student with a
Disability, Appeal No. 12-004). The Court has held that “where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the
Burlington factors have a right to retroactive direct tuition payment relief.” See, Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp.2d 403, at 428 (S.D.N.Y. 2011); see also, A.R. v. New York City Dep't of Educ., 2013 WL 5312537, at *11 (S.D.N.Y.
Sept. 23, 2013).
In this case, the Parents presented their 2014 tax return which indicated that the family income for the 2014 tax yeas was (P-Ex. L; T. 106-107).
The Parent also testified that there had been no other changes in the family’s income to date, that they have no assets and that they do not have a special needs trust for the Student (T. 107- 108). Based on the evidence presented I find the Parents eligible for direct funding.
With regard to the District’s argument that the equities balance in favor of the District and not the Parents, I did not hear any evidence to bolster that statement. The
District did not present any witnesses and did not cross examine the Parent. There is nothing in the record to support the District’s contention that the equities weigh in favor of the District.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
1. ORDER THAT, the District provide direct funding to the for the Student’s tuition for the 2015/16 school year in the amount of
( ).5
SO ORDERED
Dated: February 1, 2016
5 This amount is reduced from the total tuition for the year (P-Ex.K) based on a stipulation of the parties that the .
VANESSA M. GRONBACH, ESQ.
Impartial Hearing Officer
VM:
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 EXHIBITS
Number Description Date Pages
A Due Process Impartial Hearing Request 9/21/15 5
B Notice of Placement 8/24/15 5
C Program Description undated 1
D Curriculum 2015/16 13
E Class Schedule 2015/16 1
F Schedule 2015/16 1
G Report 11/30/15 1
H Report 11/25/15 1
I Report 11/27/15 2
J EnrollmentContract 8/15/15 3
K Payment Affidavit 11/24/15 1
L U.S. Individual Income Tax Return 4/30/15 2
M Parent Letter to Department of Education 6/10/15 1
N Assessment of Skills 9/17/15 9
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
[2] Reference to the Transcript shall be referred to as “T”. A more detailed list of exhibits is admitted as Appendix B.