NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: Student‟s Name: Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: March 10, 2011
May 5, 2011
May 12, 2011
May 16, 2011
May 19, 2011
August 16, 2011
August 23, 2011 Actual Record Close Date: November 16, 2011 Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2011
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 5, 2011
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
Assistant Principal, (via telephone) — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2011
Attorney (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2011
Attorney — Student
Parents
Principal (via telephone) — Student
(via telephone) — Student
Attorney — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2011
Attorney — Student
Parents
Coordinator — Student
Therapist — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2011
Attorney — Student
Parents
Neural (via telephone) — Student
Center (via telephone) — Student
Director, Department, Center (via telephone) — Student
For the Department, — Student
Attorney — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2011
Attorney — Student
Director, Department, (via telephone) — Student
Parents
Attorney — DOE
I. PROCEDURAL HISTORY
This hearing was requested on September 16, 2010 by counsel for the student and the parents pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents for costs associated with the student‟s unilateral placement at the for the 2010/11 school year (Ex. IHO-I at 6).[1] In a September 24, 2010 due process response, the DOE denied each and every allegation contained in the parents‟ impartial hearing request (Ex. IHO-II at 1). I was appointed by the DOE to hear this matter on March 3, 2011, following the recusal of another hearing officer. In a letter dated March 3, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHOII). Hearings in this matter were held on: March 10, 2011; May 5, 2011; May 12, 2011; May 16, 2011; May 19, 2011; August 16, 2011; August 23, 2011.[2]
On the first day of hearing, March 10, 2011, the DOE moved to dismiss the parents‟ due process complaint alleging that, due to the student‟s status, the parents lacked standing to bring their due process complaint against the DOE and that the parents‟ claims were not ripe for adjudication (Exs. IHO-IV, IHO-VI at 2-3, 5). The parents opposed the DOE‟s application (Exs. IHO-V, IHO-VI at 3, 5). In an Interim Order dated April 1, 2011, I granted the DOE‟s motion with respect to the parents‟ claim that the student was rejected from the proposed placement because of his lack of vaccinations (Ex. IHO-VI at 6-7, 10). The DOE‟s motion to dismiss the parents‟ remaining claims was denied (Ex. IHO-VI at 7-10).
Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of a May 4-5, 2010 annual review meeting of the student‟s program by the DOE‟s Committee on Special Education (the “CSE”), the student was a six ( years old and classified as a student with .3
Prior to the 2010/11 school year, the student received through the Department of Health and special education services under the auspices of the DOE‟s Committee on Preschool Education (the “CPSE”) (R. 32-33; Ex. SD-4 at 1). As of February 2009, the student received twenty-five (25) hours of instruction from a special education itinerant teacher (“SEIT”) and daily services (Ex. SD-4 at 1). and were also recommended for the student at that time (Ex. SD-4 at 1).
Although the student was not able to participate in standardized testing during a psychological evaluation conducted in January and February of 2009 by the , the evaluator, Dr. , noted that the student presented with significant deficits in all areas of . The student engaged in and difficulties consistent with his diagnosis and his (Ex. SD-4 at 1-2). To address the student‟s needs, the evaluator recommended that the student be placed in a small, structured classroom in a small, therapeutic school for a twelve
(12) month instructional program (Ex. SD-4 at 2).[4] The evaluator also recommended that the student receive with access to a ”) or other (Ex. SD-4 at 3).
In a March 17, 2009 educational progress report, the student‟s SEIT stated that the student was making “slow progress” toward goals and (Ex. SD-12 at 1). Given past success when the student receive individual instruction, the SEIT recommended that the for the following school year (2009/10), the student be enrolled in a center based program on an extended school year basis (Ex. SD-12 at 2, 5).
In a letter dated July 2, 2009 addressed “to whom it may concern,” Dr.
of the for and Professor of Pediatrics at stated that she had evaluated the student neurologically since 2006, that the student has a diagnosis of and that the
3
.
8 NYCRR § 200.1(zz)(1). The student has been diagnosed with an since October 2006 (Ex. SD-13 at 1). The student‟s educational classification as a student with s not in dispute (Exs. IHO-1, IHO-2)
student purportedly had a history of adverse reactions to immunizations (Ex. SD-5). Based on this background, Dr. advised the student‟s parents not to give the student any additional (Ex. SD-5).
In a letter dated July 28, 2009 from DOE Director , the student‟s mother was informed that the DOE‟s Office of School Health and Bureau of had reviewed and denied her request for a medical exemption from of the student because there was no medical basis supporting an exemption (Ex. SD-6). No appeal was taken by the parents to the Commissioner of Education from the DOE‟s July 28th decision denying their request for a medical exemption from vaccination of the student (R. 30).
The student attended the during the 2009/10 school year (his year). At the , the student received: and , six (6) times per week for forty-five (45) minutes per session; twenty (20) hours per week of individual ; and individual , five (5) times per week for forty-five (45) minutes per session (Ex. SD-13 at 1). The developed an individualized education program (“IEP”) for the student based on scores he achieved during the Assessment and (“ ”) (Ex. SD-7).[5]
In a March 22, 2010 done at the , the student‟s receptive and expressive language skills were evaluated using the for .[6] Results from this and other informal assessments indicated language. The student‟s expressive language capabilities were significantly compromised by and . It was also noted that, although the student had made progress in his ability to engage in reciprocal interactions, he continued to demonstrate significant weaknesses in the areas of . The evaluation team recommended that the student receive ( ) times weekly, for forty-five (45) minutes per session, from a and that the student use a high-tech augmentative communication device to facilitate language development (Ex. SD-13 at 5-6).
On April 13, 2010, Ms. , a school psychologist for the DOE, observed the student at the and prepared a written report of her observations (Ex. SD-9).
In an April 28, 2010 progress note, the student‟s stated that he had made improvements in all areas addressed during his , but continued to demonstrate significant . The student‟s recommended that he receive - with suspended equipment to achieve therapeutic results (Ex. SD-10 at 2).
In an April 27, 2010 programming and progress note, Ms. , Director of Services at the , noted that the student needed many practice trials to acquire new skills, but was able to and attend to his instructor at the table for longer periods as the year has progressed. Although the student acquired skills across domains, he continued to display (Ex. P-D at 3). The student On April 30, 2010, the developed a ”) for the student to address (e.g., ) (Ex. SD-8).
At the May 4-5, 2010 annual review meeting, the CSE developed an IEP for the student which recommended that the student receive special class instruction (with a student-to-teacher ratio of ) for the 2010/11 school year (Exs. SD-1 at 1, SD-2 at 2). The CSE also recommended that the student receive , and , and the services of a (Ex. SD-1 at 26-27, SD-2 at 2).
In a letter dated June 15, 2010, counsel for the parents notified the DOE, in writing, of the parents‟ rejection of the proposed 2010/11 IEP for the student and of their intent to unilaterally place the student in the , a private school, located at (Ex. P-C).
On or about June 16, 2010, the DOE notified the parents that the school at which the 2010/11 IEP services would be delivered would be (Ex. SD-3).
In a letter dated June 24, 2010, the student‟s mother thanked Mr. , the principal of , for speaking with her about the student‟s proposed placement at his school and stated that she would fax to him the DOE‟s July 28, 2009 letter denying the student a medical exemption from required vaccinations (Exs. SD-6, P-A).
In a June 28, 2010 response to the DOE‟s placement offer, the student‟s mother stated that she was rejecting the proposed public placement because instruction (which the parent felt the student required) was unavailable, the range of functioning of the other students was “extremely varied” and the student would require additional vaccination before being admitted to the school (which the parent opposed) (Ex. P-B).
III. POSITIONS OF THE PARTIES
A. The Parents
The parents seek tuition reimbursement for their unilateral placement of the student at the for the 2010/11 school year. The parents state that the CSE‟s proposed program for the 2010/11 school year was not reasonably calculated to confer a benefit to the student. The CSE did not rely on necessary evaluations to properly gauge the student‟s current skill levels. The annual goals and short term objectives prepared for the student were inadequate. There was no ”) done of the student and the was inadequate.
Counsel for the parents has also raised, for the first time in his post-hearing memorandum of law, several additional objections to the proposed program. They include: that the CSE that developed the student‟s proposed public program was not duly constituted, that the IEP lacked recommendations for curriculum methodology and parent and training and that the student would not have been suitably grouped in the proposed program with other students having similar needs and abilities.
B. The DOE
The DOE asserts that the parents‟ tuition reimbursement claim should be denied. The DOE states that it offered the student a free appropriate public education, that the was an inappropriate placement for the student and that the equities mitigate against a reimbursement award.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
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.[7] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer‟s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student‟s recommended program must also be provided in the LRE. See 20
U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§
200.1(cc), 200.6(a)(1); 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
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), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
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. See N.Y. Educ. Law § 4404(1)(c).
A board of education may be required to reimburse parents for private educational services obtained for a student, 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); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private schools for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (N.D.N.Y. 1998).
For the reasons set forth below, I find that the DOE‟s recommended program for the student was inappropriate, that the was an appropriate placement for the student and that there are no equitable grounds for which a reimbursement award should be reduced or precluded.
B. Scope of Impartial Hearing
In their post-hearing memorandum of law, the parents raise several issues which were not contained in their due process complaint notice (Exs. IHO-I, IHO-VII). State regulations provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process compliant notice unless the other party agrees. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(i)(7)(b); R.B. v. Department of Educ. of City of New York, 2011 WL 437694, at *6-*7 (S.D.N.Y. Sept. 16, 2011); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *8 (S.D.N.Y. Aug. 27, 2010).
In their post-hearing memorandum of law, the parents raise, for the first time, allegations that the May 4-5, 2010 CSE meeting was not duly constituted, that the IEP improperly omitted a recommendation for and , that the group of students with whom the CSE proposed to educate the student during the 2010/11 school year was inappropriate and that a recommendation for a specific instructional methodology was improperly omitted from the IEP. As none of these issues were raised in the parents‟ due process complaint notice, I will not consider them now (Exs. IHO-I, IHO-VII). See C.F. v. New York City Dep’t of Educ., 11 Civ. 00157 (LTS), 111 LRP 68797 (S.D.N.Y. Oct. 28, 2011).
C. CSE Consideration of Evaluations
In developing the recommendations for a student‟s IEP, a CSE must consider the results of the initial or most recent evaluation; the student‟s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student‟s performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. See 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2).
Based on the credible testimony of Ms. , I find that the CSE properly relied on the evaluations available to it in assessing the student‟s then-current skills levels. Ms. testified that, prior to the May 4-5, 2010 meeting, she and Ms. , a special education teacher from CSE , received records from the . The student‟s mother provided the CSE with the 2009 evaluation conducted by Dr. which the CSE reviewed and considered as part of its deliberations (R. 259-263, 295; Ex. SD-4). From these records, as well as input from the student‟s teachers at the , the CSE obtained relevant information on the student‟s levels of academic performance and learning characteristics, performance, development and management needs (R. 259-260, 263, 266-269, 275, 297; Ex. SD-1 at 4-7).
D. Sufficiency of Goals and Objectives
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student‟s needs the result from the student‟s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student‟s other educational needs that result from the student‟s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
I find that the annual goals contained in the CSE‟s May 4-5, 2010 IEP are inappropriate as they failed to include evaluative criteria, evaluation procedures and schedules to be used to measure the student‟s progress toward meeting the annual goals in those areas. The annual goals are vaguely worded (e.g., the student “will improve reading skills,” the student “will improve math skills,” etc.) and fail to identify how well and over what period of time the student must perform a skill in order to consider it met (Ex. SD-1 at 8-22).
To the extent that deficits identified in the IEP goals may be deemed procedural, I find that these procedural errors impeded the student‟s right to a FAPE, significantly impeded the parent‟s opportunity to participate in the decision making process regarding the provision of a FAPE to the student, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); see also Rowley, 458 U.S. at 206 (“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.”).
E. Absence of /Adequacy of
When a child displays that impede his or her learning or the learning of other students, the IDEA requires that the CSE consider the use of and , and other strategies, to address that behavior. See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i). Additionally, State regulations require that the CSE conduct an FBA in order to determine why the child displays interfering behaviors. See 8 NYCRR § 200.4(b)(1)(v).[8] The FBA is intended to be the basis of the BIP. See 8 NYCRR § 200.1(mmm).[9] However, where the BIP documents a child‟s interfering behaviors and proposes strategies and supports to address those behaviors, the failure to also conduct an FBA does not amount to a denial of FAPE. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009).
I find that the CSE‟s behavioral intervention strategies for the student were sufficient to meet his needs. After determining that the student‟s “behavior seriously interferes with instruction and requires additional adult support,” the CSE conducted an FBA by securing from the staff data on the frequency, intensity and duration of each of the student‟s interfering behaviors and their antecedents. The FBA was then used to create a BIP for the student (R. 270, 300; Ex. SD-1 at 6, 28). The CSE also recommended that the student receive the services of a aide to address the student‟s interfering behaviors (Ex. SD-1 at 26).
Alternatively, while the parents claim the CSE‟s failed to conduct an of the student, even assuming, arguendo, that they are correct, the omission of an does not warrant a finding that the student was denied a FAPE where, as here, Dr. did not recommend an in his 2009 evaluation and where other strategies were established by the CSE to address the student‟s interfering behaviors (i.e., behavior management paraprofessional) (Exs. SD-1 at 26, 28, SD-4 at 4-5). See id.; C.F. v. New York City Dep’t of Educ., 11 Civ. 00157 (LTS), 111 LRP 68797 (S.D.N.Y. Oct. 28, 2011); J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009).
F. Appropriateness of DOE‟s Special Class
I find that the proposed public program was not reasonably calculated to confer benefit on the student because it would not have provided the student with sufficient personalized instruction to permit him to benefit educationally from that instruction. See Rowley, 458 U.S. at 203.
Based on the recommendations contained in Dr. ‟s 2009 evaluation and the credible testimony of witnesses called by the parents, I find that the student‟s academic, and management needs required greater individualized instruction than twenty (20) minutes per day, which Ms. estimated would have been available to the student in the proposed special class (R. 214-216).
In his 2009 evaluation of the student, Dr. recommended that the student participate “in a small, structured classroom setting, as part of a small, therapeutic school that will prove him with attention to ensure his attention and participation.” Dr. further noted that the student “requires attention within his class by a special educator throughout the day to ensure his attention and participation” (Ex. SD-4 at 3). Likewise, Ms. provided credible testimony that the student must be placed in a setting to address “ and for (R. 396). Dr. , the student‟s private therapist, also provided credible testimony that the student needed a setting for instruction to address his and (R. 491-492). Lastly, Dr. (of - ) and Ms. (the student‟s at the ) both affirmed that the student required extensive instruction in order to learn (R. 532, 554-556, 569, 630, 644).
G. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2010/2011, I turn to the appropriateness of the parent‟s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student‟s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, „the same considerations and criteria that apply in determining whether the [s]chool [d]istrict‟s placement is appropriate should be considered in determining the appropriateness of the parents‟ placement.‟” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student‟s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent‟s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides „education instruction specifically designed to meet the unique needs of a handicapped child.‟” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
I find that the was appropriate because it provided the student with sufficient levels of specifically designed, individualized instruction to meet his unique educational needs.
The student attended the during the 2010/11 school year (his year).[10] At the , the student received: , ) minutes per session; eleven and a half ( ) hours per week of ; and individual , ) minutes per session (Ex. SD-13 at 1). Additionally, the student received additional services twice weekly outside the from Dr. . The student also attended School daily for per week with an from the (Ex. P-H at 1).
On August 20, 2010, Ms. developed a for the student to (Ex. P-F). This document was later revised on March 21, 2011 (Ex. P-G).
The student‟s functioning were reassessed in September and October of 2010 by Dr. . While the student was unable to complete a full battery due to his significant difficulties with language expression, on the ”), the student demonstrated average nonverbal intellectual capacity, with a performance falling at the percentile (Ex. P-L at
3).[11]
Academically, the student demonstrated performance in basic reading skills ( percentile; equivalent). The student‟s was on a letter and familiar word identification h task, with a in the level ( percentile). The student‟s were assessed to be significantly , however, falling at only the percentile and below a . Similarly, the student‟s ability to make inferences from , measuring at percentile and below a level. were also briefly assessed and were found to be even , percentile and suggesting the need for in for (Ex. P-L at 2-3).
During the 2010/11 school year, the student‟s goals included , skills, , and . Although the student had made progress by the spring of 2011 in his ability to engage in reciprocal interactions, he continued to demonstrate in the areas of and . Given that the student‟s capabilities were difficulties, the sessions in the spring focused skills via an on the . While the student had acquired in the areas of , he continued to demonstrate delays in these areas (Ex. P-H at 1,6).
Following the introduction of his the student showed the ability to spontaneously without specific training. He was with his once shown where a button was, and was able to use that button to (Ex. P-E at 2).
By May of 2011, the student was able to sit in a ten (10) minute group, attend to the teacher or material for of the period and respond to five (5) of the teacher‟s direct instructions. The student could , ) nouns to pictures, match at least and type at least twenty (20) words on his In math, the student could place numbers l order, answer the question “ and match a (between 1-10) (Ex. P-E at 4).
Over the course of the school year, the . By May of 2011, he was able to attend to more complex work tasks at the instructional table, participate in a group setting for small portions of the day, and his (Ex. P-E at 4).
The student attended a typical for part of his day, and was learning how to appropriately in that setting. From this experience, the student was able to make “ ” in following a , waiting appropriately for activities to begin, parallel play with peers, , and generalizing previously acquired skills to a new setting (Ex. P-E at 5). In a May 17, 2011 progress note, it was noted that the student had shown “significant improvement” in his interest in playing with peers. He reportedly enjoyed playing games such as tag and catch with other children. The student also demonstrated improvement in , , and strength (Ex. P-J at 3, 6).
From the data referenced above, I find that the student benefitted from the available to him at the . Through his program and related services at the , the student demonstrated improvement in his behavior and progressed in his nonverbal expression. I find that the student needed instruction to acquire requisite learning skills, to help him and , and to aid his and (Ex. P-L at 4).
Alternatively, while the DOE argues in its post-hearing brief that the was inappropriate for the student because, inter alia, it did not offer the student physical therapy which was a component of the CSE‟s May 2010 IEP, parents need not show that their preferred placement provides every special service necessary to maximize the student‟s potential in order to meet their burden of proof (Exs. SD-1 at 27; IHO-VIII at 27). See Frank G., 459 F.3d at 364-65.
H. Relevant Equities
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
The IDEA also provides that 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. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
Although counsel for the student and the parents provided the DOE with written notice on June 15, 2010 of the parents‟ intent to unilaterally place the student at the for the 2010/11 school year, that notice failed to indicate that the private placement would be at public expense (Ex. P-C). However, as the DOE has not objected to this defect in the parents‟ notice, nor has any prejudice to the DOE been demonstrated, I do not find that any reduction in tuition reimbursement to the parents is warranted. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
While the DOE asserts that the cost of the was unreasonably high given the additional costs incurred for the and related applications, I find that the costs of the program were reasonably related to staffing levels associated with the student‟s program. I further find that the parents have adequately demonstrated the costs they incurred as a result of their unilateral placement of the student at the for the 2010/11 school year (Ex. P-K; Attachment to Ex. IHO-VII).
Lastly, while the DOE contends in its post-hearing brief that the parents never intended to place the student in public school for the 2010/11 school year because their June 15, 2010 notice of intent preceded the DOE‟s June 16, 2010 final notice of recommendation, the parent‟s pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of their failure to cooperate with the development of an IEP or their interference with the selection of an appropriate placement by the DOE (Exs. SD-3, P-C; IHO Ex. at 29). Cf. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373
F. Supp. 2d at 417-18.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS HEREBY ORDERED THAT:
Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for the student‟s tuition and other costs associated with the student‟s unilateral placement at the for the 2010/11 school year. Dated: December 1, 2011
___________________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:jj
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 ON MARCH 20, 2011
PARENT
A Letter to Mr. from . , 6/24/10, 1 p. B Response Letter from . 6/28/10, 2 pp. C Letter to . from . , 6/15/10, 2 pp.
DEPARTMENT OF EDUCATION
1 Individualized Education Program, 5/4-5/10, 28 pp. 2 IEP Minutes, 5/4-5/10, 2 pp. 3 Final Notice of Recommendation, 6/16/10, 1 p. 4 Evaluation, 2/14/09, 5 pp. 5 Letter from , M.D., 7/2/09, 1 p. 6 Letter to from , 7/28/09, 1 p.
IMPARTIAL HEARING OFFICER
I Impartial Hearing Request, 9/16/10, 6 pp. II Due Process Response, 9/24/10, 4 pp. III Letter to parties from IHO, 3/3/11, 5 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 5, 2011
DEPARTMENT OF EDUCATION
7 Individualized Education Plan 2009/10, 9/09, 8 pp. 8 , 4/30/10, 2 pp. 9 Classroom Observation, 4/13/10, 3 pp. 10 Progress Note, 4/28/10, 5 pp. 11 Letter to from , 3/31/09, 1 p. 12 Educational Progress Report, 3/17/09, 5 pp. 13 Comprehensive Evaluation, 3/22/10, 6 pp.
IMPARTIAL HEARING OFFICER
IV DOE‟s Brief on Motion to Dismiss, 3/24/11, 5 pp. V Parent‟s Letter Brief on DOE‟s Motion to Dismiss, 3/24/11, 7 pp. VI Interim Order, 4/1/11, 12 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 19, 2011
PARENT
D Programming & Progress Report, 4/27/10, 4 pp. E Programming & Progress Report, 5/9/10, 9 pp. F , 8/20/10, 2 pp. G , 3/21/11, 2 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 16, 2011
PARENT
H Comprehensive Evaluation, 4/1/11, 6 pp. I Information, 5/31/11, 3 pp. J Progress Note, 5/17/11, 9 pp. K Provider Affidavit & Parent‟s Verification of Service, 6/3/11, 2 pp. L Re-evaluation, 10/12/10, 6 pp.
DOCUMENTATION ENTERED INTO RECORD FOLLOWING HEARING
IMPARTIAL HEARING OFFICER
VII Parents‟ Post-Hearing Brief, 9/23/11, 37 pp. VIII DOE‟s Post-Hearing Brief, 9/23/11, 30 pp. IX Confirmation of Extension, 3/10/11, 1 p. X Confirmation of Extension, 4/15/11, 1 p XI Confirmation of Extension, 5/16/11, 1 p. XII Confirmation of Extension, 6/15/11, 1 p.
XIII. Confirmation of Extension, 6/23/11, 1 p. XIV Confirmation of Extension, 8/16/11, 1 p. XV Confirmation of Extension, 9/16/11, 1 p. XVI Confirmation of Extension, 10/17/11, 1 p. XVII Confirmation of Extension, 11/16/11, 1 p.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their respective positions in accordance with the requirements of due process justified the delay in the resolution of the matter. Accordingly, requests for extensions of the compliance date were granted due to the availability of witnesses and the extensive testimony and issues presented in this proceeding (R. 62-63, 233-234, 246-247, 362-363, 510- 512, 960-961; Exs. IHO-III at 5, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV, IHO-XV, IHO- XVI, IHO-XVII).
[4] In an , systemic prompting and reinforcement is used to support students in their classroom environment to ensure successful learning in domains (Ex. P-I at 3).
[5] The is a criterion-referenced assessment tool, curriculum guide, and skill tracking system that measures in a sequential order across developmental levels (Ex. SD-7 at 1). The is used to identify where to intervene and what potential objectives might be appropriate for a child‟s IEP (Exs. P-D at 1, P-E at 1).
[6] This test is designed to provide a systemic means for observing, recording and summarizing the variety of ways through which an individual can (i.e., ). This instrument summarizes an individual‟s skills as a , taking into (Ex. SD-13 at 2).
[7] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an , elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student‟s behavior relates to the environment. 8 NYCRR § 200.1(r).
[9] Behavior management plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm)
[10] While the DOE states in its post-hearing brief that “ is not a school. It is a for-profit center,” the SRO has previously declined to find that a parent is categorically barred by Section 1412(a)(10)C)(ii) from seeking tuition reimbursement for a for-profit school (Ex. IHO-VIII at 21). See Application of a Student with a Disability (New York City Dep‟t of Educ.), Appeal No. 09-080 at 5 (SRO Sept. 17, 2009).
[11] The NNAT is a measure that examines general reasoning ability and problem-solving skills using progressive matrices in children and adolescents (Ex. P-L at 3).