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FINDINGS OF FACT AND DECISION
Case Number: 158193
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 9, 2015
February 10, 2016
Actual Record Closed Date: March 26, 2016
Hearing Officer: Elise B. Kestenbaum, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 9 2015
Esq. Attorney (via telephone) — Student
Chairperson’s Designee (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 10, 2016
Esq. Attorney (via telephone) — Student
Parents
(via telephone) — Student
(via telephone) — Student
(via — Student
telephone) — Student
(via — Student
telephone) — Student
Chairperson’s Designee — DOE
INTRODUCTION: — DOE
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the parents
(“Parents”) on behalf of , the student (“Student”), through their advocate, by filing a Due Process Complaint dated October 1, 2015 with the District. The Parents were represented by , Esq. at the hearing.
The Parents are alleging that their son, , was denied a free and appropriate public education (“FAPE”) for the 2015-16 school year and are seeking tuition for his unilateral placement at the (“ ”) and the for said year.
There were two (2) days of hearings in this matter. Hearings were conducted on December 3, 2015 and February 10, 2016.Extensions were granted in this case making the final compliance date April 1, 2016.1A list of Exhibits is attached as Exhibit A. The
Parent, the District, and the Impartial Hearing Officer all submitted exhibits.
BACKGROUND
This case involved a student. During the 2015-16 school year, attended where the Student was unilaterally placed by the Parent.
With respect to the 2015-16 school year, an Individualized Education Program (“IEP”) was developed on September 3, 2015.[2] Pursuant to the September 3rdIEP,
1 The Party moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. (Tr. 12; Tr. 141; IHO-II).
was classified with and was recommended for for , , and , and per week. The Parent sent an initial letter on April 21, 2014 requesting a CSE meeting and to provide consent for evaluation. P-B. Additional letters dated July 10, 2014 (P-C), August 8, 2014 (P-D), and February 25, 2014 (P-E) were also sent requesting an initial CSE meeting. A letter w as subsequently sent on August 25, 2015 acknowledging that an initial CSE meeting was set for September 3, 2015 and that the Student had been unilaterally placed at in the interim. P-F.
The Parents entered into a Contract with and the on March 31, 2015. P-F.
The Parent filed a Due Process Complaint on October 2, 2015. P-A. I was appointed as an Impartial Hearing Officer on October 2, 2015,
POSITION OF THE PARTIES
Parents’ Case
The Parent called five (5) witnesses, , , ,
and the Parent, and placed fifteen (15) documents in evidence. P-A – P-O.
The first witness was who has Masters Degrees in and and has New York State permanent certification for in . He is presently a at for grades . Tr.
28. He also served as for eight years and served as a and when he first started at . He has been at for 18 years. Tr. 28.
He is familiar with because he is a student in his class.
Tr. 29. There are students in the class. There is a at and he is in the , which is the . Tr. 29. Mr. described the Student as . He . He also has difficulty with and (Tr. 30) and
(i.e. ). Tr.
31. In order to help the Student with his , he . Tr. 31. To help him with , he . Tr. 33. Mr. testified
that he .
Tr. 33. Mr. testified that the Student’s has improved and he can and is now able to
. Tr. 33 – 34.
In order to address the Student’s , Mr. stated “
” He
or . Tr. 35.
has benefitted from this since he now
. Mr. also
. This is helpful to because it allows him to
. Tr. 37.
Mr. testified that the Student has made steady progress this year and that
.
gets . Tr. 38. He also works
with Mr. , his on and Mr. uses
to and the as to
. Tr. 39. Mr. further stated that belongs in his and is appropriately placed at . Tr. 40.
The next witness was . He has a Master’s degree in and an advanced certificate in and is certified in , grades . Tr. 46. He is currently employed at and teaches for grades . Mr. is familiar with the Student since he is in his class. Tr. 47. There are students in his class and the class meets per week ( ). Tr. 48 – 49. His strength is . Tr. 48. His main weakness is . Tr. 48. He also is , though he has shown improvement in this area.
Tr. 48. He also has and as well as
. Tr. 48-49.
To help with , Mr. has
. In addition, he uses to
.
Tr. 50. Using the technique of has helped . Tr. 50.
He has made slow and steady progress with . Tr. 51.
With respect to , Mr.
and and have . Tr. 52.
and Mr. . Tr. 53.
The Student has made progress this year and
. Tr. 53. He also sees improvement in . Tr. 54.
His include , , and
. Tr. 54. Mr. checks in with Mr. , the and believes he is effective for because of his strong background. Tr. 55. Mr.
believes that he is appropriately placed in his class for since it is and . Tr. 55. He also indicated that he was appropriately placed at and benefits from the , , etc. Tr. 56.
The next witness was the father. is and in the at . He has attended for years and prior to that was at for years. Tr. 64. is a student who is , however has challenges including which make it difficult for him. Tr. 65. He was never in a public school and was not classified when he was at , however had been evaluated prior to starting there. He moved from to with his father in 2014. Tr. 66. The father stated that the Student had his first CSE meeting on September 3, 2015. Tr. 68. He testified that he never received a copy of that IEP. Tr. 68. He recalls that at the meeting, the Student was classified with . Tr. 69. The Parent testified that he believes that is meeting ’s needs this year. Tr. 69. He is benefitting from the ,
, and the to provide him with . Tr. 69. His is helping the student . He also helps the Student . Tr. 71. is important to the Student because it helps him . Tr. 71. He also finds that finds the , , beneficial to him. Tr. 72. The Parent testified that the Student is at . Tr. 73. He was but is not at . Tr. 75. As a result, he is not receiving and is not having the same issues he had previously. He has and is . Tr. 75. The father believes that along with the is meeting ’s needs for the current school year. Tr. 75.
On cross examination, the Parent testified that the Student was not receiving but was receiving . Tr. 82. The Parent also stated that there was a meeting with a on August 25, however, the Parent did not know he was supposed to bring He did, however, give consent at that meeting. Tr. 85.
On redirect, the Parent testified that he first contacted the CSE on April 21, 2014 and the first meeting he had with any member of the CSE was on August 25, 2015. Tr.
86.
The next witness was . He has Masters Degrees in and . Prior to working at , he taught in a New York City public school as a , but has let his license lapse. Tr.
89-90. He is presently the and teaches three classes. Tr. 91.
Prior to that, he was in the . Tr. 91. He has been at for eight years. Tr. 91.
He is familiar with since he is in his class (10 – 2). Tr.
91. There are and the class is
. Tr. 92. Mr.
stated that ’s ( ) but he has specific realms of difficulties in , and would be difficult for without the teaching techniques he uses in this class. Tr. 93.
. Tr. 95. is given since he is
. Tr. 96. He also so can
. Tr. 96. Although he is aware of ’s
difficulties, Mr. has through a . Tr. 96. Mr.
. Tr. 97. He
uses in class. Tr. 96.
The Student has in Mr. ’s class, however, he . Tr. 99. Mr. stated that “…
.” Tr. 100. Mr. collaborates with Mr.
at least a week. Tr. 100. attends with Mr. on a basis. Tr. 102. Mr. believes that the Student is appropriately placed in his class and he . Tr. 102. He also benefits from the and, as a result, is able to get . Tr. 103. Mr. also believes that is the right place for because it provides for the Student. Tr. 104.
The last witness was . He has a Master’s degree in and an advanced certificate in . Tr. 107. He is certified in grades , grades , and both . Tr. 107.
He is an and the
, and a . Tr. 108. He has had several years’ experience working with Students with Disabilities in , and
. Tr. 108.
Mr. is familiar with because he is his . This is his second year working with him. Tr. 109. The is a program where
.
. Tr. 109.
. Tr. 109.
. Tr. 110.
.
Tr. 110. .
. Tr. 111. Mr. is also , as needed. Tr. 111. He also . Tr. 111. With respect to , he , , and . Tr. 112.
Although is , he has issues with and
.
He also has . Tr. 112. He stated that is but and . Tr. 113.
In , Mr. and the Student
. With , they
. Tr. 113. With ,
Mr.
. Tr. 114. In , he uses the which . Tr. 114.
He has improved in but still needs . Tr. 115. He is and has . Tr. 115. He
. Tr. 117. He now is and is
. Tr. 117. In terms of , Mr. discusses
and . Tr. 118. He is and
and
. Tr. 119. He and
. Tr. 120. Because he is , he was
. Tr. 121. He also was
. Tr. 121. Mr. testified that has and is . Tr. 122. The
Student also benefits from the and . Tr. 123.
has , , and services. Tr. 125. Mr. testified that is appropriately placed at .
District’s Case
The District did not call any witnesses and placed one document in evidence. D-
1. The District conceded Prong 1 of the Burlington-Carter analysis in this matter thereby admitting that they did not provide with FAPE for the 2015-16 school year.
FINDINGS
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 individual 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.
1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme court in School Committee of the Town of Burlington
v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]).
Prong I – Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.
Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.
Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak
v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S.
at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]
[citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v.
Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).
In this case, the District conceded Prong I.
Prong II – Appropriateness of Parental Placement
Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of at and the . In order to meet that burden, the Parents must show that offered an educational program designed to meet ‘s special education needs.
Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration 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…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “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 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010).
It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”].
The Parents have met their burden in showing that and the was an appropriate placement for In order to meet their burden, the Parents must show that and the offered an educational program that enabled the child to receive educational benefit but not one that it furnishes every special service necessary to maximize their child’s potential. Testimony has been provided to show that is a that has an called the which provides . P-H; P-K. The which is very helpful for the Student. Tr. 69;Tr. 123; P-H; P-K. There is also a at . For instance,
. Tr. 93. In , there are ;
; ; and
. Tr. 109-111; P-H; P-K. Another
factor critical to is , which provides
,
etc. Tr. 53; Tr.71; P-H; P-K.
With respect to , Mr. and Mr. testified that ’s include , as well as . Tr. 30-31. Mr. indicated that has . Tr. 92. Mr. indicated that he has issues with and and that he is and . Tr. 113. All agreed that had as well.
Mr. uses and
and
. Tr. 35. Mr. helps with ’s but
. Tr. 50. He also uses
. Tr. 52. Mr. gears his teaching towards students with difficulties with and also collaborates with Mr. to support the Student. Tr. 100. is also provided with ,
, . Tr. 38; Tr. 84, Tr. 125.
All of ’s teachers and his father stated that was appropriate for due to the , and the the teachers provide to to meet his needs . They also felt that the was valuable and appropriate to meet ’s needs and provide him with the he requires. Mr. testified that has made strong progress and that . Tr. 38. Mr. stated that he has made improvements in . Tr. 48. Mr. stated that . Tr. 53. His father stated that he is benefiting from the , and the . Tr. 69. He
also testified that he has . Tr. 75. Mr.
testified that the student
. Tr. 100. He also indicated that he
. Tr. 102. Mr. stated that has improved in the
. Tr. 115.
Based on the foregoing, it is clear that and the are providing with academic instruction specifically designed to meet his unique needs and he is receiving educational benefit. Furthermore, the integration of the with the at is providing with an appropriate education in the least restrictive environment. Therefore, I find that the Parents have met their burden in proving the appropriateness of and the for
Prong III – Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.
The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never 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 day before such removal. 20 USC 1412
(a)(10)(C)(ii).
I find that the Parent participated in the September 3, 2015 CSE meeting. Prior to the meeting, the father sent several letters to the CSE requesting a CSE meeting. P-B; P-
C; P-D. On February 25, 2015, he notified the CSE that was requiring that he sign a contract and that he planned on signing the contract to reserve a place for He stated that if he received an appropriate and timely placement from the District, he would enroll his son in such placement. P-D.
Based upon his actions, in terms of equitable considerations, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them.
Based upon the foregoing, I find that the District did not provide FAPE to for the 2015-16 school year (Prong I), the Parents’ placement of at and the is appropriate (Prong II), and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them
(Prong III). Accordingly, the Parents are entitled to tuition reimbursement for the 2015-
16 school year at and the .
ORDER
Based upon the foregoing, it is hereby
ORDERED, that
The District shall reimburse the Parent for the tuition for in the amount of and the in the amount of for the 2015-16 school year, upon proof of payment and proof of attendance at for the 2015-16 school year.
Dated: March 29, 2016
Corrected Date: April 7, 2016
ELISE B. KESTENBAUM, ESQ.
Impartial Hearing Officer
EBK:
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.
Appendix A
DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
No. Date Document Pages
A. 10/1/2015 Hearing Request 8
B. 4/21/2014 Parent Letter to the CSE 2
C. 7/10/2014 Parent Letter to the CSE 1
D. 8/8/2014 Parent Letter to the CSE 3
E. 2/25/2015 Parent Letter to the CSE 3
F. 8/25/2015 Parent Letter to the CSE 2
G. 3/20143 and Evaluation
19
H. 10/19/2015 Affidavit from ,
4
I. 11/6/2015 Class Schedule, 1
J. 12/23/2015 Second Quarter Report, 1
K. undated Description of Program, 2
L. 3/31/2015 Enrollment Contract with Contract,
4
M. 11/9/2015 Affidavit of Tuition, 1
N. various dates Parent Proof of Tuition Payments 1
O. 9/3/2015 CSE Review Meeting Minutes 2
DISTRICT EXHIBITS
No. Date Document Pages
1. 9/3/2015 IEP 13
IHO EXHIBITS
I. 2/3/2016 Subpoena 1
II. misc. dates Compliance Decisions 4
Footnotes
[2] The Parent had requested this IEP by subpoena (IHO-I) prior to the start of the hearing. The Parent’s attorney indicated that the Parent never received this IEP. D-1.