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FINDINGS OF FACT AND DECISION
Case Number: 155103
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 22, 2015
September 17, 2015
November 13, 2015
April 15, 2016
Actual Record Closed Date: May 10, 2016
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2015
Advocate — Student
Parents
Teacher, (Via Telephone) — Student
District Representative — DOE
Teacher Assigned — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17, 2015
Advocate — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2015
Advocate (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 15, 2016
Advocate — Student
Parents
District Representative — DOE
By appointment on March 20, 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).
The Complaint alleges that the IEP team for the 2014-2015 school year failed to assess the Student in all areas of suspected disability. The parent also alleges that the IEP team did not include the correct composition and that the resultant IEP contained, among other things, inappropriate , , , and . As relief, the parent seeks reimbursement for tuition, and expenses as a result of the parental placement at the .
The matter was extended numerous times on joint application as a result of witness availability, complexity of issues, decision writing, and related issues. No objection was raised in connection to any extension.
FINDINGS OF FACT
The Student is now a who is eligible for services as a student with
. (Exh. 1)
He , and in , he
. He is , needs , and needs
. (Exh. 1) His . He
and , and or . He
and . (Exh. 1)
A evaluation from May, 2013 found that the Student scored a . (Exh. 9) At the same time, on the , he scored at the in and at the in . He received a in ,
at .
A (“ ”) was written for the Student on April
28, 2014. In the , it was determined that
.
(Exh. 2) in the IEP were limited to “ ” (Exh. 3)
An IEP meeting was held for the Student on May 1, 2014. Attending were from , the parent, and other representatives from the school. (Exh. 1) The
IEP recommended a and contained goals in
, and , , , , and . (Exh. 1)
It recommended a program with related services of ,
, and .
.
The parent objected to the program because she felt that the Student needed . (117, 126) As a result, the Student continued at the program for the 2014-2015 school year. This program offers, among other , and . (Exh. B) At
, the Student’s classes included , , , ,
, , , , ,
, , , , , , and
. (Exh. E)
The program provided its own goals in , ,
, . (Exhs. H-K) The Student made “ ” progress at the (“ ”) school in all subjects for the 2014-2015 school year. (114) He received a that was based on , which worked for him. (Exh. G) The also included “ ” and
“ ” Though there was improvement with respect to , he continued to and continued to .
For the , the Student was in a program that was a setting that provided him with . (120) He made progress in this setting. (121-122)
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.
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 parent are appropriate ("second criterion"), and equitable considerations support the parent's 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).
On the first criterion, the District should show that it offered parents a FAPE. 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][3][E][ii]; 34 C.F.R. §
300.513[a][2].
While the District did defend the IEP in this case, all of the evidence presented was hearsay in nature. The parent did not have the opportunity to cross-examine the District or its witnesses in regard to the reasons behind the language in the IEP, or in how that IEP might have been implemented. This information is necessary in the record, especially in regard to the parent’s main contention that at the District placement is not appropriate. Moreover, though the District did do a in this instance, it is frankly very hard to see how merely talking to this Student would change this Student’s , such as . Presumably, this has already been tried, without success. It is also relevant to note that would . The parent prevails on “prong one.”
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 testimony in the record establishes that the program provides to address the Student’s special education needs. The school offers , such as that have been working for him, , , and
a . The record also shows that the Student has made progress , including in and . A comparison of the Student’s levels on his 2014 IEP reveal compared to the testing that was conducted on the Student in 2013.
The District argued that the Student required a , and that the Student was only enrolled in a . However, the parent’s unrebutted testimony was that the Student’s did include that resulted in progress. I found the parent credible in this matter.
The District also argues that a portion of the Student’s school day is , but points to no authority which authorizes a hearing officer to deny reimbursement if there is some offered during the day. On the contrary, there is a significant body of caselaw where parents of children win reimbursement/payment awards for schools that provide such instruction. Application of the New York City Department of Education, Appeal No. 05-074; Application of a Child with a Disability, Appeal No. 04-
073; Application of a Child with a Disability, Appeal No. 01-102. Accordingly, the parent prevails on “prong two.”
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.
The District’s primary argument here, again, relates to the fact that a part of the Student’s school day is , but this fact is not considered an equitable bar to reimbursement. A review of the record indicates that the parent attended CSE meetings and generally cooperated with the District. The parent gave the District a fair opportunity to create a program for the child. There is nothing in the record to suggest that the parents failed to comply with any directive from the District or failed to respond to phone calls from the District. The parents prevail on the third criterion and are awarded tuition reimbursement/payment for for 2014-2015.
ORDER
As a result of the foregoing, it is hereby ordered that the Department of Education pay for all tuition and related payments owed to for the 2014-2015 school year.
Dated: May 24, 2016
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
ML:
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 Due Process Complaint dated 3/19/15, 5 pages
B Program Description, 2 pages
C IEP dated 4/1/14, 16 pages
D Ten-Day Notice Letter dated 6/18/14
E 2014-2015 Class Schedule, 1 page
F 2014-2015, 2 pages
G 2014-2015 , 1 page
H 2014-2015 , 1 page
I 2014-2015 , 1 page
J 2014-2015 , 1 page
K 2014-2015 , 1 page
L 2014-2015 , 1 page
M 2013 Tax Return, 2 pages
N 9/2/14 Enrollment Contract, 1 page
O 2014-2015 Related Services Cost, 1 page
P School Affidavit dated 6/24/15, 1 page
DEPARTMENT OF EDUCATION
1 IEP dated 5/1/14, 13 pages
2 dated 4/28/14, 5 pages
3 dated 4/28/14, 4 pages
4 Conference Checklist dated 5/1/14, 2 pages
5 Parent Letter dated 6/18/14, 1 page
6 Meeting Notice dated 4/15/14, 3 pages
7 Notice of Recommendation dated 6/5/14, 4 pages
8 Event Log, various dates between June 2012 through July 2015, 11 pages
9 Evaluation dated 5/10/13, 2 pages
10 Consent for Only dated 12/10/13, 1 page
11 dated 1/2/14, 1 page