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Goldman & Maurer, LLP Wins Another case Against the NYCDOE

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I. PROCEDURAL HISTORY

On July 6, 2015, a pro se due process complaint was filed on behalf of __ , pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C.§1415 (f). Three days later, on July 9, 2015,1 was appointed as the Impartial Hearing Officer in the matter.

On August 5, 2015, the mandatory resolution period (8 NYCRR §200.5(j)(2)) expired, and five days later on August 10, 2015,1 held a hearing with an interpreter in the Mandarin Chinese language in attendance[I]. At  the hearing[II] the Department of Education ("DOE") consented to pendency at the last agreed-upon placement for ___, which had been at the United Cerebral Palsy School ("UCP"). Tr. 4-5. Pendency at UCP was later memorialized in an Interim Order, dated September 4,2015.[III] Exhibit O.

However, matters in this case soon evolved, and __ 's parents contracted an  Education Consultant, Bruce Ellis, who filed an amended due process complaint, dated October 4, 2015, on their behalf. Exhibit K. On November 13, 2015, the second mandatory resolution period expired. A telephonic pre-hearing conference was then conducted with party representatives on November 24, 2015.

Subsequently, a hearing pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.) was held to decide matters raised in the amended due process complaint. 20 U.S.C. §1415 (f). The hearing transpired on six dates: January 6, 2016, January 13, 2016, January 27, 2016, February 23, 2016, March 2, 2016, and March 30, 2016.[IV] At hearing, and throughout the remainder of the case, the parents added Brian Goldman, Esq. to its representation. Mr. Goldman, conducted the hearing on their behalf, with Mr. Ellis in attendance for all of it, except for January 27, 2016. The Department of Education ("DOE") was represented by Chanie Graus, District 15 Representative.   The record was closed on May 6, 2016 upon the deadline for receipt of written closing briefs submitted by the parties, which I have entered into evidence as Exhibit IX (Petitioner), and Exhibit X (the DOE). Appended to this decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR § 200.5(j)(5)(v).

II. PRELIMINARY FACTUAL BACKGROUND

___  is a five-year-old boy who is attending the United Cerebral Palsy Preschool for the 2015-2016 school year. UCP is a NYS approved special ed school, Tr. 177 He is in a 12 month program with multiple disabilities. Exhibit I; Tr. 18 There were no recent reports introduced into evidence regarding   ___ , which is unfortunate since a year in the _life of a 5 year old will ordinarily lead to enhanced developmental changes. Nevertheless, since it is all that I have, I will note some of the information, which has been gathered despite it being somewhat dated. A psychological report, taken when _____  was about 3 and a half years old stated that he has been diagnosed with pervasive developmental disorder, not otherwise specified, oropharyngeal seizure disorder, gastroesophageal reflux disease (GERD), and developmental delay. "He experienced seizures triggered by high fever beginning at 14 months of age." He wears glasses and does not tolerate liquids or solids. Regarding the former, he requires a thickening agent. His language seemed to regress after ear surgery. Exhibit C-l In a test administered to____'s teacher, Yelena Lobova, he scored low in the Vineland Adaptive Behavior Scales, which measures one's ability to perform functional, everyday life skills in the home, school, and community environments. Exhibit C-2 In an Annual Progress Report, dated 2/20/14, ____  was said to functioning at a 9-12 month age level in social emotional development. Exhibit B-2 ___'s most recent IEP notes a medical alert for medical conditions and/or physical limitations, which affect his learning, behavior and/or participation in school activities. Exhibit 1-13

III.  POSITIONS OF THE PARTIES
 
The DOE
  1. The school psychologist who had intimate knowledge of ___'s specific needs placed him in an appropriately designed least restrictive 8:1:1 setting with appropriately designed services. The DOE thus afforded ___  a free and appropriate public education ("FAPE")
  2. A second IEP meeting was held on February 13, 2015 because the DOE representative was not in the room for the entire time, and also to recapitulate what had taken place with a more proficient Mandarin interpreter[4].
  3. __ 's mother never intended to accept any CSE recommendation that did not place__ at UCP. Her visit to the proposed school placement was only for show.
  4. __ 's mother was "mendacious" in professing that her knowledge of English was limited.
  5. Therefore, the DOE disagrees with the parents' rejection of the DOE placement, and maintains that the parents' requested relief is not warranted.


The Parents

  1. Neither a morning, nor a purported afternoon IEP meeting were appropriately composed.                      ,
  2. The DOE has violated the IDEIA by not providing a proper interpreter during the IEP team meeting and during a "rushed" visit by ___'s mother to the proposed DOE placement, thereby negating requisite parental participation in the IEP process.
  3. FAPE has been denied.
  4. ___ is making meaningful educational progress in his continued program at UCP.
  5. Equitable considerations are in the parents' favor.


IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework and Standard

This case involves a disagreement between the parties over the provision of FAPE, so a look at pertinent law will be a necessary jumping off point.

The underlying intention of the Individuals with Disabilities Education Improvement Act (IDEIA)[5] (20 U.S.C. §§ 1400-1482) is to provide children with disabilities a FAPE. A foundational Supreme Court decision, Rowley, in defining what was meant by a FAPE held that the IDEA does not require states to "maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children." It does set a floor, however, and holds that a State furnishes a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Board of Education v. Rowley 458 US 176,203 [1982],

Rowley also emphasized procedural protections that emphasized parental participation as an important protection to due process rights. While not every violation is considered "material," the Supreme Court and Congress have emphasized the importance of the procedural provisions found in the IDEA. Rowley, 458 U.S. at 205.  The 2004 IDEA amendments have codified the procedural part of the Rowley inquiry, with special emphasis on the opportunity for parental participation. Specifically, 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2) provides: In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—
(i)  Impeded the child's right to a FAPE;
(ii)  Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or
(iii)  Caused a deprivation of educational benefit.Defining the third possibility, the 2d Circuit, in Walczak v. Florida Union Free Sch. Dist, 142 F. 3d 119, later concluded that the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." "The purpose of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Walczak v. Fla. Union Free Sch. Dist. 142 F.3d 119, 130 (2d Cir. 1998) (internal quotation marks omitted). It then quoted from an earlier ruling it had made and reaffirmed that what "the statute guarantees is an 'appropriate education, "not one that provides everything that might be thought desirable by loving parents.'" Walczak at 132. (internal citation omitted). However, a school district must provide an IEP that affords the student with an opportunity greater than mere "trivial advancement." "An appropriate public education under IDEA is one that is "likely to produce progress, not regression." Walczak, id.

A threshold tool in providing a FAPE is a written, individualized education program (IEP) that is tailored to the unique needs of the handicapped child. The "centerpiece" of the IDEA'S education delivery system is the IEP. Murphy v. Arlington Central School District Board of Education 297 F.3d 195, 197 (2d Cir. 2002) (internal citation omitted). Indeed, the CSE "must consider the results of the [student's] initial or most recent evaluations" (8 NYCRR 200.4(d)(2)). To put it another way, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I). 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]). Furthermore, that evaluation must be "sufficiently comprehensive to identify all of the student's special education needs" (8 NYCRR 200.4(b)(6)(ix). The purpose of the comprehensive evaluation is to "provide relevant information that directly assists persons in determining the educational needs of the student" (8 NYCRR 200.4(b)(6)(xi), An evaluation must include a physical examination, a psychological evaluation, an educational evaluation, a social history, a classroom observation and "other appropriate assessments or evaluations." (8 NYCRR 200.4(b)(1).[6I] A student's IEP must reflect the results of current evaluations. 8 NYCRR 200.4(b)(iv) provides that an initial evaluation must include "an observation of the student's learning environment (including the regular classroom setting) or, in the case of a student of less than school age or out of school, an environment appropriate for a student of that age, to document the student's academic performance and behavior in the areas of difficulty."

A CSE that prepares a student's IEP must include the student's parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special education, an individual who can interpret the instructional implications of evaluation results, the school physician if requested by the parent in advance of the meeting, and the parent of another child with a disability (Education Law Section 4402[1] [b]; 8 NYCRR Section 200.3 [a] [ 1 ] [viii].

As indicated above, parents are an integral participant in the development of an IEP. As articulated by the Supreme Court: "Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. § 1414(c)(3). Parents are included as members of 'IEP teams,' §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an 'independent educational evaluation of the[ir] child.' § 1415(b)(1). They must be given written prior notice of any changes in an IEP, § 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, § 1415(d)(1). Schaffer v. Weast, 546 US 49, 53 (2005). The IEP must also contain present levels of performance, annual goals, and an objective method to evaluate whether those goals have been reached.[7]

Should understanding of the English language be an issue, the district "must take whatever action is necessary to ensure that the parent understand the proceedings of the [CSE] meeting, including arranging for an interpreter for parents ... whose native language is other than English" (34 CFR 300.322[e]; 8 NYCRR 200.5(d)(5); 8 NYCRR 200.5 [j] [3] [vi]. The parent testified that her native language is other than English (Tr. p. 832).

Furthermore, parental participation at IEP meetings must be "meaningful". Deal v. Hamilton County Board of Education, 392 F.3d 840, 853 (6th Cir. 2005). It should be noted that the Sixth Circuit amplification of what constitutes FAPE was cited without comment in a Second Circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217.

The IDEIA's preference is for disabled children to be educated as much as feasible with their non-disabled peers, or in what is referred to as the "least restrictive environment" ("LRE") capable of meeting their needs. Id. at 132; 20 U. S. C. § 1412(5). Classroom placement is also a component of a FAPE. For instance, a New York court remanded a case to an IHO to determine the appropriateness of the District's proposed classroom placement for a student. J.M. and N.M. v. N.Y.C. Department of Education, 2013 U.S. Dist. 159533 (S.D.N.Y. November 7, 2013).

In the seminal case of Burlington, the Supreme Court held that in an appropriate situation, retroactive tuition reimbursement to parents was allowable under the Act. To determine whether it was allowable, it formulated a three-part examination of what is required to be shown. The three parts, or "prongs" are whether: (1) The program offered by their school district was inadequate or inappropriate; (2) The program selected by the parent was appropriate; and, (3) If equities supported the parent's claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). See also, Florence County School District v. Carter, 510 U.S. 7 (1993). Should a parent fail in either of the initial two Prongs, the inquiry terminates at that point and reimbursement is denied. Id.

Then, more than two decades after Rowley, the Supreme Court put the burden of persuasion in an administrative hearing upon the party seeking relief. Schaffer, supra. However, a couple of years later, the New York State Legislature reversed that obligation, and placed the burden of production and persuasion upon the school district, except as regards a unilateral private placement by parents, where they are tasked with the burden. (See Educ. Law §4401 [l][c], as amended by Ch. 583 of the Laws of 2007).

Prong 1

The IEP Meeting

Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not. See Werner v. Clarksiown Central school District, 363 F. Supp. 2d 656, 659 (S.D.N.Y.) 2005) Further, the Second Circuit emphasizes that even minor violations may cumulatively result in a denial of a FAPE. See R.E. v. NYC. Dep't of Educ., 694 F.3d 167, 175 (2d Cir.2012) The IEP meeting, which took place in two parts (am and pm) and is discussed directly below, had many such procedural failings, which easily added up to a denial of FAPE. Both the parents' attorney and the DOE representative proved to be proficient sleuths for their respective causes. (See Exhibits IX and X.) However, circumstance afforded the former the opportunity - which he grabbed hold of - to reveal damaging information that led directly to a central issue regarding parental participation in __'s bifurcated IEP meeting.

AM:

During the am meeting, District Representative Gonzalez testified that while the meeting was in progress, she walked out to find an interpreter,[8] and testified that nobody replaced her in absence. She added that the district representative is there to make certain that the parent's voice is heard. Tr. 264-265. Additionally, despite___ attending UCP at the time, Ms. Gonzalez agreed that no teacher from that school was listed on the am attendance page. She also had no memory of any such person participating in the meeting. Tr. 287-288 In the past when she participated in IEP meetings, she testified that she had adjourned meetings if she did not have a necessary participant present, either in the room or on the telephone. Tr. 288-289 She agreed that it is important to have service providers participate in an IEP meeting. Tr. 291-292 Finally, there was apparently no parent member present in that meeting either. See Exhibit H

The am meeting had another, in this IHO's view, serious question. It appears that there was not a competent interpreter present who could converse with Ms. ___in the Mandarin dialect. For starters, the chosen interpreter's name, "Mr. Hui", was added in handwriting to the morning meeting attendance page. As it was not printed beforehand, as were the other five names, I must wonder if he was a last minute addition, in lieu of a more official interpreter. See. Exhibit H-l

Testifying on the DOE side of the question was Ms. Gonzalez. According to her, Mr. Hui speaks both Cantonese and Mandarin. Tr. 297 She added that he was a dual language first grade teacher who had acted as a "translator" in many capacities, such as at meetings. Furthermore, she continued, he has also translated documents that would go to parents. She did not recall an experience where a native speaker of Mandarin did not understand him. Tr. 254-256

Ms. ___, on the other hand, testified that Mr. Hui told her that while he spoke a "little" Mandarin, his native language was Cantonese; She added that she could "barely" understand him due to differences in pronunciation between Cantonese and Mandarin. Tr. 407-408 Her testimony was buttressed by her social worker Ms. Zhen Yang (also known as "Alice") who in direct testimony by affidavit stated that she has known Ms.__ since sometime in 2014. Exhibit CC-3 Ms. Yang added that she received a telephone call from Ms.____after the meeting saying that she did-not understand the CSE interpreter because he did not speak Mandarin, but instead spoke the Chinese dialect of Cantonese. Exhibit CC-3-4; See Tr. 371 Significantly, Ms. Yang added that:
 

Ms. __  speaks extremely limited English. She is able to speak very simple words: Hello, Goodbye. How are you, etc. She is able to understand only very simple, basic English and she is unable to write in English and is unable to read in English, except for words like her name, her son's name, etc. Exhibit CC-2

Indeed, Ms. Yang said that she talked "exclusively" in Mandarin with Ms. ___ . Exhibit CC-2-3

Consequently, there is a serious divergence in testimony that might have been clarified had the interpreter himself been called as a witness. However, Mr. Hui was not called, and thus was not able to testify himself as to his interaction with Ms. and as to whether and why he believed Ms. ____ understood what they were saying to each other. Additionally, no evidence has been introduced as to any of his independent qualifications to act as a Mandarin interpreter.

PM:

The afternoon meeting, also had its problems, not the least of which was its brevity. These are my findings. Ms. Gonzalez realized that the am meeting had been faulty (See Tr. 306-3-7) and hastily, and without prior notice to Ms. __  arranged for a telephone follow-up "meeting." See Tr. 412 Ms. Grady, listed on the pm attendance page as a general education teacher (Exhibit 5-1), attempted to translate to Ms. ___. in Mandarin. But because Ms. _____  expressed concern that she could not understand, Ms. Grady left the room and enlisted yet another teacher, categorized on the pm attendance page as a "Related Service/Special Education Provider, Ms.__ , to take over for her. She did not recall what type of documents were reviewed at the pm meeting. Eventually, both of them sat through the remainder of the meeting. Tr. 41-42 One again, no one from UCP was present either in the room, or on the telephone. Tr. 315 One again, there was a disagreement between the parties, this time regarding the length of the telephone call. While Ms. Gonzalez testified that the phone call was approximately 30 minutes, Ms. ___ testified that after an initial call asking her what language she spoke, a follow-up call came that lasted for only a few minutes. Tr. 418 Telephone records from AT&T revealed that the second call transpired over some 8 minutes. Exhibit W-8; Tr. 418-420 I thus do not find credible Ms. Gonzalez's testimony that school psychologist Aria Pequero went over the entire 14-page IEP, including the goals during that 8 minute telephone conversation. See Tr. 308-309 I consequently also cannot credit her earlier testimony regarding the am session that she did not recall an experience when a native speaker of Mandarin did not understand Mr. Hui. Tr. 254-256 

In sum, two faulty "halves" do not add up to a healthy whole. I find that the IEP meeting failed the seminal Rowley admonition regarding procedure, as detailed above by "significantly" impeding Ms. __'s opportunity to participate in the decision-making process regarding the provision of a FAPE to her child. Tr. 376 One outcome of such neglect was testified to by Ms. Yang who said that Ms. _ had wanted a 1:1 para for her boy, but could not get that through to the interpreter. So, it had no chance of being put into the IEP, and indeed is not there. In neither session could she understand the interpreter of the moment. In the pm session, with Ms. __ on the other end of a telephone, there was a period of time when there was no interpreter even in the meeting room. This is similar to the am session, which District Representative Gonzalez was absent from a
part of, necessitating in her own words an afternoon redo. Tr. 306-307

Testimony also cast doubt on whether Ms. ___ ever had any documents in her possession to examine even in English, much less than in Mandarin, as is required under New York State regulation. Indeed, the whole process was haphazard and deficient. District Representative Gonzalez agreed that parental input is very valuable, that parents know their children and that it's a "must" to have parental input. Tr. 292-293 However, while her statement is in accord with Rowley and its progeny, the actions of the Committee on Special Education on February 13, 2015 were not. In sum, neither meeting by itself was acceptable; nor did the two in combination cure the inadequacy. Considering both the actual time spent at the bifurcated IEP meeting and the dearth of requisite information compiled, the incomplete IEP team seemed to rush headlong to the finish line without completing the careful, prescribed steps to create an appropriate product. While the parent was physically present at the am meeting and on the telephone for the follow-up, to the extent that she was unable to understand what was being said, she might as well have been totally absent because she was unable to actually contribute to its outcome. Indeed, I find it somewhat ironic that while Ms. __  had difficulty in  understanding the English language, that deficiency has been overwhelmed by what the English speaking DOE did not understand; or chose not to understand which were the needs of this 5 year old multiply disabled boy who could not speak for himself. It would appear that despite her English language deficit, the clearest, yet unlistened to voice, was that of__ 's mother, Ms.__ .

In sum, I find the partial absence of the district representative and the total absence of a representative from  ___'s school, UCP, together with the lack of a parent member combined with the interpreting and translation deficiencies outlined immediately above to be procedural violations that led to a deprivation of educational benefit for ___. 

The DOE Placement

In early August 2015 [9], Ms. ___ made a site visit to___ 's proposed placement at P141K. Ms. Simone Sanchez who accompanied Ms.__ during the visit, testified that she  has an MA in special education, and has been working with a self-contained education program, designated as District 75 for the last 17 years.[X] Tr. 65 She said that Ms. ___ called her regarding the site visit, and did not ask for a "translator," despite communicating in "limited English." Tr. 68-69 This contrasts significantly with Ms. __'s testimony that at the visit, she indeed asked for an interpreter, and none was provided. The DOE introduced a "site visit" document that would indicate that Ms.____spoke more than the limited English to which Ms. Sanchez testified. However, I note that the document had a date of January 7, 2016, which is some three months after the parents' October 4, 2015 amended due process complaint was filed. Indeed, based on the testimony cited so far, I have doubts as to whether she could have supplied such detailed information. In sum, I find that an interpreter ought to have been provided for Ms.__ at the site visit.

Substantively, I find that the DOE placement at P141K was clearly inappropriate for __ . For starters, it was a 10 month program, while ___'s multiple disabilities would call for an extended school year 12-month program to forestall regression. See Exhibit R-3 Additionally and significantly, the program called for group services, which belies the recommendations of __ 's providers at UCP. See. Exhibits A A, BB and CC. His speech and language provider, for instance warned that group services would not be appropriate for___ because of his "poor attending skills and limited focus skill." Ex. BB-4,

Additionally, in a social history update, ___ was described by his mother as not able to talk or walk independently. He wears glasses and a hearing aid. He bangs his head on the wall wherever he is. He has seizures. He cannot feed himself, nor can he go to the toilet by himself. Exhibit 2.    has sensory issues, and is scared to touch objects with which he is not familiar. attention. Tr. 182 In sum, there has been no showing by the DOE that the program recommended was  likely to produce progress and afford ___with an opportunity greater than perhaps mere trivial advancement. See Walczak, supra. Thus, based on the faulty IEP meeting, with its attendant inappropriate IEP, and the inappropriate placement at the District 75 school, I find that the DOE has not met its burden in demonstrating that a FAPE has been provided to      

Prong 2-The Parent Placement

Having found that the DOE failed to provide a FAPE, I now consider whether the parents met their burden by offering an educational program that is appropriate to meet the educational needs of young  ___ I find that they have. In addressing the burden that the Parent must meet to satisfy Prong 2, the Second Circuit disseminates a detailed outline to help decide it. 
 
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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 reimburesment 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 

 (iGagliardo, 489 F.3d at 112, quoting Frank G„ 459 F.3d at 364-65). Further, the private school need not be state approved nor employ certified special education teachers. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]. The  measure of whether a parent's unilateral placement is appropriate under the IDEA is similar but not identical to the standards applied to the DOE's proposed placement. See A.D v. N.Y. City Dep't of Educ., 690 F. Supp. 2d 193 (S.D.N.Y. 2010). The issue in sum is whether at the time of placement in the private school, the placement was reasonably calculated for the child to. receive individualized educational benefit. Frank G., supra. Although the restrictiveness of the parental placement may be considered as a factor in determining whether the parents are entitled to an award of tuition reimbursement, parents are not as rigorously held to the standard of placement in the LRE as are school districts. SRO-13-087 at 24 (citations omitted).  In this regard, I note that the certified school psychologist who administered__ 's psychological update, opined that ____  continues to benefit from his placement at UCP, "as it appears to be in his least restrictive environment." Exhibit C-4

In her uncontested Affidavit, ___ 's speech and language provider, Carmella Barbiera, encapsulated the appropriateness of UCP for___ in an Affidavit sworn to on March 11, 2016:

I firmly believe that UCP is a strong program for [______ ] to attend. At UCP, we provide individual therapy sessions in (ST, OT, and PT). We believe individual sessions allow a child to focus and attend to tasks in a more appropriate manner. Our Speech Therapists here focus on oral-
motor and feeding therapy to help improve feeding skills which is highly important in children with these disabilities. We have a tech support room filled with Augmentative and Alternate Communication devices allowing a non verbal child such as [__] to learn to communicate his
needs and engage in tasks with his teachers n peers. We also have a pool here at UCP; which allows [___ ] to further work his muscles especially in the areas for OT and PT. UCP therapists and staff work closely together to ensure that goals are worked on and carried over and to work
toward achieving current LTGs and STGs. Exhibit BB

Unfortunately, neither Ms. Barbieri nor any of__ 's other providers from UCP were invited to participate in the formulation of his IEP for the 2015-216 school year. However, what they most likely would have told the IEP team has been entered into evidence as Exhibits. 

I further find that the testimony of____ 's social worker at UCP, Ms. Marian Lizzio, buttressed his need to remain there for the 2015-2016 school year. She stated that  ___is now able to walk sometime without assistance, and that he is making progress in feeding. Tr. 150-151 likewise,  ___'s teacher, Ms. Rimma Klots testified that       has made progress at UCP. When she initially started to work with him, he was nonverbal. Now, his speech is emerging. He is starting to speak. Tr. 182 She added that given his disabilities ___ requires the individual attention that UCP provides. Tr. 183 Finally, Ms.______herself noted the importance of the pool at UCP, which help deal with his sensory issues. Tr. 437

In sum, based on the credible testimony provided by UCP providers and by Ms.___ , I find that the record supports the finding that UCP is an appropriate placement for____ the 2015-2016 school year.

Prong 3 - The Equities

With respect to equitable considerations, the IDEIA allows that tuition reimbursement may be reduced or denied when a Parent fails to raise the appropriateness of an IEP in a timely manner and inform the school district of their intent to unilaterally place the child in a private school, fails to make their child available for evaluation by the school district, or upon a judicial finding of unreasonableness with respect to the actions taken by the Parent. 20 U.S.C. §1412[a][10][C][iii]; M.C. v. Voluntown Bd. Of Educ. 226 F3d 60, 68 (2d Cir.2000) See, Burlington, supra. However, none of those factors apply here. Ms. ___  fully cooperated with the DOE. She attended the morning CSE meeting, and participated in the brief afternoon telephone meeting. When one was not provided, she asked for a Notice of Recommendation. Indeed, the record has been silent regarding any lack of cooperation by Ms.____ , or by her husband. Accordingly, I find that equitable considerations favor reimbursement in the instant matter. See N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y.), which held that equitable considerations do not bar tuition reimbursement to a parent who provided notice of the child's educational needs and did not hinder the placement process. I have considered the parties remaining contentions and find that in light of my findings herein, I need not address them.

NOW therefore, it is hereby

ORDERED that the Parents' request for tuition payment is GRANTED. Within thirty days, the Department of Education shall pay the retroactive direct payment of full tuition to the United Cerebral Palsy school of New York City for the cost of attendance associated with  ___'s placement there for the 2015-2016 school year.

Dated: May 20,2016
Impartial Hearing Officer

Footnotes:

[1]  Ordinarily I would have initially held a telephonic pre-hearing conference, but due to the request for an interpreter, I thought it best to have everyone meet in a hearing room instead.
[2] Sharlene Legendre, District 5 Representative, spoke for the DOE, and in off the record discussions it appeared that a settlement was in the offing, though no guarantee was given.
[3] The Order was signed by me on August 30,2015, and issued by the Hearing Office as of September 4, 2015, with a corresponding signature of the latter date.
[4] The word "translator" (one translates documents) has been used frequently throughout the hearing in place of the more correct word "interpreter" who is one interpreting orally from one language to another. For clarity, I will insert the word interpreter when appropriate, even if the word translator was used.
[5] Although the Individuals with Disabilities Education Act (I.D.E.A.) was amended in 2004 in the I.D.E.I.A., the cases cited herein remain authoritative.
[6] It must utilize "technically sound instruments" to "assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors" (8 NYCRR 200.4 (b)(6)(x)).
[7]   agencies must review, and where appropriate revise, each child's IEP at least annually. §1414(a)(5). See also § 1413(a)( 11). Rowley, supra at 182; See Walczak. supra at 122.
[8] In 2014-2015 her name was Cristina Hemley, and Cristina Henley can be seen signed in as the district representative at the am meeting on the respective attendance page. Tr. 250-251; Exhibit H. Indeed, because she did not attend the entire meeting, she wrote that<t she "consulted." Tr, 253-254; Exhibit H-l
[9] At the time of the visit Ms. Sanchez did not know ___ 's disability or classification, nor the goals on his IEP, including whether he was to receive individual or group services. Tr. 90. She also had no knowledge regarding whether the proposed program was appropriate for him. Tr. 93
[10] A "Site Visit" form, Exhibit 4-1, which was signed by Ms. ____(see Tr. 81) reads August 6, 2016, while Ms. Sanchez's notes and her testimony have the visit taking place on August 7, 2015. See Tr. 79 

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All children born in 2011, in New York City, are eligible for kindergarten in September 2016. If your child is eligible for special education services and they were born in 2011, the NYC Department of Education will offer kindergarten special education services beginning in September 2016. Your child will no longer be eligible to receive services through the Committee on Preschool Special Education (CPSE). Read & Comment
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