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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District: 23
Hearing Requested By: Parent
Date of Hearing: April 27, 2011
July 14, 2011
Actual Record Closed Date: August 17, 2011
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLED OF PERSONS WHO APPEARED ON APRIL 27, 2011
For the Student:
, ESQ., Attorney (via telephone)
For the Department of Education:
, DOE Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2011
ESQ., Attorney — Student
Parent/Guardian — Student
DR., Psy D., Clinician, Center (via telephone) — Student
DOE Representative — DOE
— DOE
I. PROCEDURAL HISTORY
This hearing was requested on April 1, 2011 by counsel for the student and the parent 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 pay costs associated with the student‟s unilateral placement at the Center (“ ”), a private school, from May 12, 2011, the date of her admission, through the end of the 2011/12 school year (Exs. SD-8 at 2-3, P-H at 1).[1] In an April 7, 2011 due process response, the DOE denied each and every allegation contained in the parent‟s impartial hearing request (Ex. P-C at 1). Following an April 27, 2011 pre-hearing conference, a hearing was held on July 14, 2011. 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 the impartial hearing, the student was ( ) years old and attending the in (Ex. P-H at 1). is a nonpublic residential school that has been approved by the Commissioner of Education as a school with which public school districts may contract to provide education instruction and services to students with disabilities (R. 58, 81-82; Exs. SD-8 at 1; P-L at 1-2). See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for education and related services as a student with an disturbance is not in dispute in this hearing (R. 83; Exs. SD-3 at 1, SD-8 at 2; P-C at 1).[2] See 34 C.F.R. § 300.8(c)(4); 8 NYCRR 200.1(zz)(4).
A. Relevant Medical History
The student was admitted to the on May 12, 2011 from Queens Children‟s Psychiatric Center (“QCPC”) where she received treatment for approximately two and a half months (Ex. P-H at 1). Prior to her transfer to QCPC, the student received inpatient treatment at Kings County Hospital Center (“KCHC”). The student was admitted to KCHC on December 20, 2010 after running away from home following a alternation with a peer on the school bus (Exs. SD-1 at 2, SD-2 at 1, SD-4 at 1; P-H at 1). The student has had five (5) hospitalizations since age (Ex. SD-1 at 2). In the past, the student has been diagnosed with: disorder, combined type (“ ”); disorder; defiance disorder; disorder (“ ”); borderline disorder, and . As of May 12th, the student was diagnosed with , , and (Exs. SD-1 at 3, SD-2 at 1, SD-3 at 4-5; P-H at 1)
The student has been in the care of her mother since she was ( ) weeks old. The student was from her mother‟s due to related issues (Exs. SD-1 at 2, SD-2 at 1, SD-4 at 2; P-H at 1). All of the student‟s developmental milestones were reportedly achieved within normal limits (Ex. SD-2 at 12). At the age of ( ) years old, the student first came to the of mental health professionals and was diagnosed with . From 2006 through 2008, the student participated in outpatient treatment at St. Vincent‟s Mental Health Clinic in Brooklyn and was treated with (which was later discontinued due to negative side effects). In 2009, the student‟s mother reported that the student‟s significantly worsened, which coincided with the student her mother. (Ex. P-H at 1). Also, at this time, the student reported having been by a on several occasions (Exs. SD-2 at 1, SD-4 at 3; P-H at 1).
(v) a tendency to develop symptoms or fears associated with personal or school problems.
The term includes schizophrenia. The term does not apply to students who are maladjusted, unless it is determined that they have an disturbance. 8 NYCRR § 200.1(zz)(4).
Following a discharge from the hospital component of Brooklyn Children‟s Center (“BCC”) on November 15, 2010, the student resided at the Bonding Links community residence and attended a day treatment program at BCC (Exs. SD-1 at 2, SD4 at 1). The community residence reported that the student did well in the program for the first three (3) weeks, but thereafter, the student demonstrated increasing lability, impulsivity and agitation. Reports from the BCC day treatment program indicate that during her time in the program, the student was resistant to treatment, towards staff and provocative (Exs. SD-1 at 2, SD-4 at 4).
What followed were numerous incidents of running away (6-7 times, for hours to days), activity with (some and some reported as ), psychiatric hospitalizations (six (6) documented), day treatment programs, frequent changes in schools (public, private, home schooled) and suspensions. Specific problematic included: toward others ( , , , pulling ); threats to others with a ; ; and ; cursing; involvement with ( ); use; possible ; ; ; property destruction ( in walls, over tables); out of an emergency exit on a bus; expression of ideation; and lack of . The student has been described as: labile; ; ; ; ; easily
; of school; defiant with elevated ; high ; and provocative. Psychop treatment has included , , and . These medications were all discontinued due to various side effects. As of May 25, 2011, the student was prescribed and (Exs. SD-1 at 2-4, SD-2 at 1, SD-3 at 4-5, SD-4 at 1-3; P-H at 1).
In a January 14, 2011 psychiatric evaluation and referral summary, the KCHC staff noted that, despite receiving extensive support services, including community residence and day treatment, the student continued to demonstrate significant difficulties with regulation, , insight and judgment, which made her a to herself and others. Based on this history, the KCHC staff recommended that the student be accepted to a residential treatment facility where she could receive extensive support and supervision and her clinical needs could be adequately met (Ex. SD-1 at 4).
B. Academic Levels of Functioning
The student underwent psychological testing during her impatient stay at Bellevue Hospital Center in December of 2009 (Ex. SD-2 at 2). On an administration of the Wechsler Intelligence Scale for Children - Fourth Edition, the student received a Full Scale IQ of . Due to inter-index scatter, however, this composite score was not thought to be reflective of the student‟s actual overall functioning (Ex. P-H at 1-2). Nevertheless, the testing results indicated that the student‟s cognitive functioning fell in the average range, including average skills, reasoning and working , with significantly weaker processing of visual information during graphomotor tasks (Ex. SD-2 at 2).
On January 31, 2011, the student‟s cognitive functioning was reassessed by the
Girls‟ Psychiatric Inpatient Unit at KCHC on behalf of Committee on Education (“CSE”). The results of an administration of the Wechsler Abbreviated Scale of Intelligence indicated that the student‟s cognitive functioning fell within the average range ( percentile), including average skills ( percentile) and average non reasoning abilities ( percentile) (Exs. SD-2 at 2; P-H at 1-2).
Also on January 31st, the Wide Range Achievement Test - Fourth Edition (“WRAT-4") was administered to the student to assess her achievement in fundamental academic areas including reading, spelling and mathematics (Exs. SD-2 at 3, SD-3 at 3). On the WRAT-4, the student scored in the average range across all academic areas (Exs. SD-2 at 3, SD-3 at 3; P-H at 1-2). The student‟s ability to read sight words and decode increasingly unfamiliar words fell within the average range ( percentile). She was also able to comprehend what she read, as indicated by her average performance on a task that required her to complete increasingly complex sentences ( percentile). The student‟s spelling fell in the average range as well ( percentile). Though the student reported that mathematics was a weakness for her, she performed in the average range ( percentile) on a task requiring her to complete increasingly difficult calculation tasks (Exs. SD-2 at 3, SD-3 at 3).
While the test results indicated that the student possessed well-developed cognitive potential and academic achievement, the KCHC staff recommended the student‟s placement in a residential treatment facility offering intensive structure and stability given the student‟s continued difficulties with regulation and tolerance (Ex. SD-2 at 3). The parent similarly noted, in a February 8, 2011 history update, that the student has more problems than academic problems and requires a very structured environment in order to be successful (Ex. SD-4 at 2).
C. February 8, 2011 CSE
In a letter received by the DOE on January 26, 2011, the parent requested an “emergency IEP to consider [the student] for residential placement (Ex. P-E). Thereafter, on February 8, 2011, the CSE convened to review the student‟s IEP. Mr. Juan , the student‟s class teacher at the BCC day treatment program, informed the other committee members that the student was a slow paced, but accurate and fluent reader. The student was able to read and comprehend grade level text. Mr. described the student‟s hand writing as “wonderful.” The student could also accurately solve addition, subtraction, multiplication and division equations with single and double digits. At the time of the , the student was learning to solve equations that involve decimals and fractions. The student‟s relative academic weakness was in the area of mathematical problem solving. According to Mr. , the student had difficulty solving word problems. Specifically, she had difficulty identifying the operation to utilize when solving word problems which require multiplication or division (Exs. SD-3 at 3, SD-5).
Despite adequate academic skills sets, however, Mr. reported that the student‟s / impediments severely interfered with her performance in the classroom. The student demonstrated avoidance, as well as overt defiance with regard to task initiation and completion. The student displayed very low motivation and significantly low tolerance. When thrown off-task, the student can easily become , , reactive, and/or . Mr. reported, however, that the student had never displayed s in his class. Instead, when severely , the student looks to flee the classroom or school setting (Ex. SD-3 at 3-4).
The CSE recommended annual instructional goals for the student on coping strategies, skills, test taking skills, s, career development, numerical calculation skills and reading skills (Ex. SD-3 at 6-10). The CSE also developed a intervention plan (“BIP”) for the student targeting compliance with teacher directives and elimination of s (Ex. SD-3 at 16-22).
The CSE determined that the student‟s / and academic needs warranted a very structured educational environment offering 24 hour/day, 7 days/week therapeutic care for her psychiatric issues. It recommended that the student receive instruction in a class setting with an undefined student-to-teacher ratio (Ex. SD-3 at 1, 11-12). The CSE also recommended that the student receive individual and smallgroup counseling. Testing accommodations of extended time and location were also provided for in the student‟s individualized education program (“IEP”) (Ex. SD-3 at 13).
The CSE did not make a specific placement recommendation for the student at the February 8th . Instead, it deferred that decision to the Central Based Support Team (“CBST”) (Exs. SD-3 at 1, SD-5, SD-6, SD-7).
On February 11, 2011, the student was accepted by the for “immediate enrollment” (Ex. P-G). The parent notified the DOE of her intent to make a unilateral placement at public expense in her April 1, 2011 demand for due process (Ex. SD-8 at 2). The student was admitted to the on May 12, 2011 following her discharge from QCPC (R. 78; Ex. P-H at 1).
III. POSITIONS OF THE PARTIES
A. The DOE
Consistent with the CSE‟s February 8, 2011 determination that the student requires a twenty-four (24) hour, seven (7) days a week residential placement in order to learn, the CBST is pursuing appropriate residential placement options for the student. The CBST should be allowed to complete that process before any findings of fact are made on whether or not the DOE has offered the student a FAPE (R. 24-26, 51-58).
B. The Parent
The parent seeks an Order directing the issuance of a Nickerson letter. On February 8, 2011, the CSE deferred the case to the CBST to locate an appropriate nonpublic residential school. As more than sixty-five (65) days have passed since the student was referred to the CSE, without an appropriate placement, the student is entitled, under Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982), to a Nickerson letter by which she may be enrolled in an appropriate, approved non-public school at the DOE‟s expense.
Alternatively, the DOE should be ordered to directly pay for the student‟s placement at the because: (1) the services offered by the DOE for the student were inadequate and inappropriate; (2) the services obtained by the parent were appropriate; and (3) equitable considerations support the parent‟s claim. See Florence County Sch. Dist. No. Four v. Carter, 520 U.S. 7, 12 (1993); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985); Mr. A. v. New York City Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y. Feb. 1, 2011); Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998).
As the student was denied a free appropriate public education (“FAPE”) for the 2009/10 and 2010/11 school years, the student is entitled to compensatory education in the form of continued placement and treatment at the for the 2011/12 school year. The parent is also entitled to attorneys‟ fees and costs. See 20 U.S.C. § 1415(i)(3).
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 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.[3] 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., 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 least restrictive environment (“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 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 being 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 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).
B. Jose P. Relief
The parent seeks, inter alia, a Nickerson letter allowing the student to attend the at the DOE‟s expense (Ex. SD-8 at 3). A “Nickerson letter” is a letter from the DOE authorizing a parent to place a student in a State-approved non-public school at no cost to the parent (Exs. P-Q, P-R). See Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a “Nickerson letter” is intended to address the situation in which a student has not been evaluated within thirty (30) days or placed within sixty (60) days of referral to the CSE. See M.S. v. New York City Dep’t of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010).
I find that the student is entitled to a Nickerson letter authorizing the parent to place the student at the from May 12, 2011 through June 30, 2012. Neither the CSE, nor any other component of the DOE, has placed the student within sixty (60) days of the parent‟s January 26, 2011 request for an “emergency IEP to consider [the student] for residential placement” (Exs. SD-3 at 1, P-E, P-Q, P-R at 2). See 8 NYCRR § 200.4(e). Indeed, as of the final date of hearing in this matter, July 14, 2011, it had been 169 days since the parent had referred the student to the CSE for placement (Ex. P-E). As the is a nonpublic residential school that has been approved by the Commissioner of Education as a school with which public school districts may contract to provide education instruction and services to students with disabilities, see 8 NYCRR §§ 200.1(d), 200.7, the student‟s placement there at public expense is authorized by Jose P. in the absence of any recommended placement by the CSE (R. 58, 81-82; Exs. SD-8 at 1;
P-L at 1-2).[4]
C. Tuition Reimbursement Analysis
Alternatively, I find that the student is entitled to placement at the for the 2011/12 school year at public expense under a traditional tuition reimbursement analysis. 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., 09 Civ. 5097 (S.D.N.Y. Feb. 1, 2011); Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998).
1. Appropriateness of the DOE‟s proposed program
Although the parent has alleged that the student was denied a FAPE for the 2009/10 and 2010/11 school years, the DOE has offered no evidence to demonstrate that it offered the student appropriate educational programming for those school years (Ex. SD-8 at 2-3). As the DOE carries the burden of proof on that issue, see N.Y. Educ. Law § 4404(1)(c), I find that the student was denied a FAPE during the 2009/10 and 2010/11 school years.
With respect to the 2011/12 school year, I find that in failing to recommend a specific educational program and placement for the student, the CSE failed to recommend an appropriate program for the student. “If a student has been determined to be eligible for education services, the committee shall develop an IEP.” 8 NYCRR § 200.4(d)(2). “The IEP shall indicate the recommended education program and services as defined in sections 200.1(qq) and (ww) of this Part from the options set forth in section 200.6 of this Part.” 8 NYCRR § 200.4(d)(2)(v)(a). “The recommended program and services shall, to the extent practicable, be based on peer-reviewed research, and as appropriate indicate . . . [inter alia] the class size, as defined in section 200.1(i) of this Part, as appropriate.”[8] NYCRR § 200.4(d)(2)(v)(b)(2). “The IEP shall [also] indicate the recommended placement.”
calculated to confer meaningful educational benefits to the student.[5] See Rowley, 458 U.S. at 206-07.
In rendering my finding that the CSE‟s IEP for the student is inappropriate, I am mindful of the recent decision of the United States Court of Appeal for the Second Circuit in T.Y. & K.Y. v. New York City Dep’t of Educ., Docket No. 08-3527-cv, 109 LRP 63646 (2d Cir. Oct. 9, 2009), cert. denied, 130 S. Ct. 3277 (2010), which held that it is not a procedural violation of the IDEA for the IEP not to name a specific school. Unlike the facts before me in this matter, the DOE in T.Y. recommended two (2) alternative placements for the student, which the parents in that case rejected as unsuitable. While the parents in T.Y. were seeking “veto power” over the CSE‟s placement decision rather than input, which the IDEA clearly does not grant, the parent here, in contrast, sought a residential placement with an educational program which could meet the student‟s needs (Ex. P-E). Although the CSE concurred with the parent that the student “is in need of a program that will provide a higher level of psychiatric care” than a day treatment program, i.e., 24 hours a day, 7 days a week, neither the CSE nor the CBST identified such a program which the student could attend (Ex. SD-3 at 12).
2. Appropriateness of the Center
Having failed to offer the student a FAPE, I turn to the appropriateness of the parent‟s unilateral placement. 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 her 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 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 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.
Based on my review of the hearing record, including the credible testimony of Dr. Carey (the student‟s clinician at the ), I find that the provided the student with specifically designed instruction to address her unique learning needs and that the student demonstrated progress while attending that placement. See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. is a residential treatment center with 229 clients, sixty percent (60%) of which are school-age students (R. 78-80). Clients live in supervised community-based residences (R. 81; Ex. P-N at 8). provides clients with transportation from their residences to school (R. 81; Ex. P-N at 9).
makes use of three (3) al educational systems: (1) programmed selfinstruction; (2) precision teaching; and (3) modification. A significant portion of a student‟s instruction makes use of self-instructional teaching software. Each student is provided with his/her own computer. The software enables each student to progress through the subject matter at his/her own pace and provides immediate feedback to students as to whether their answers are right or wrong (R. 94, 121-122; Exs. P-M at 1, PN at 2-3). Students also have access to licensed education teachers in each classroom, who provide group instruction, and classroom-based mental health associates, who assist students in comp with their contracts during academic instruction
(R. 90-94).
At the , the student‟s current course load includes: mathematics (addition, subtraction, multiplication, division, decimals and fractions); studies (early American life and geography); life sciences (life cycles and cells); health; literature and grammar (R. 93). The student‟s instruction is consistent with New York State learning standards (R. 122). Dr. reported that the student‟s academic skills are progressing and that she displays: “strong listening skills,” “above average reading,” and is “doing well in math” (R. 95). The student‟s teachers also report that she is focused and hard working during instruction (R. 95).
I find that, at the , the student was appropriately grouped for instructional purposes with other students having similar educational needs and abilities. See 8 NYCRR § 200.6(a)(3). Dr. stated that the student was grouped for instructional purposes with nine (9) other students of similar age, functioning level, psychiatric diagnoses and I.Q. scores (R. 89-90).
also makes use of precision teaching, meaning that educational progress is evaluated by the rates of correct and incorrect responses that the students show as they do their lessons. ‟s clinicians are able to chart this data, updated daily, which shows student progress on each academic skill. This system enables teachers and clinicians to monitor student progress and make instructional adjustments, when necessary (Exs. P-M at 2-3, P-N at 2-3).
I find that the positive interventions articulated by Dr. were appropriate given the student‟s needs and were consistent with the CSE‟s February 8, 2011 BIP (R. 83-84, 113, 115-118; Ex. SD-3 at 16-22). See 8 NYCRR § 200.4(d)(3)(i). uses reward systems to motivate students to improve and academic skills. As of May, 2011, the student was participating in an “immediate rewards” program which incorporated -contingent reinforcers, such as breaks from demands after short periods of appropriate and productive . The immediate rewards system was chosen for the student over a token economy or points-based system in order to minimize the time between contract criteria and earned rewards. Another reinforcer that was used with the student included access to ‟s “Yellow Brick Road,” which offers an internet café, a movie theater, a snack bar, and a teen lounge with video games, pool table, air hockey, etc. (R. 87-88, 102-103; Exs. P-H at 2, P-K, P-M at 3, P-N at 3-4, 7).
On or about June 23, 2011, a functional assessment and BIP was developed by the staff for the student (R. 84-85; Exs. SD-3 at 16-22, P-T).[6] Consistent with New York State law, the use of aversive al interventions was excluded from any BIP developed by the for the student (R. 86; Exs. P-T). See 8 NYCRR § 200.7(b)(8). The ‟s BIP consisted of contracts of various durations (e.g., between five (5) minutes and one (1) week) intended to extinguish , disruptive, destructive and self-injurious s (R. 98-99). Data was taken on a daily basis of the student‟s compliance with her contracts (R. 103-106; Exs. P-I, P-U) Dr. stated that the student passed many of her contracts, more than one time
(R. 99; Exs. P-I, P-U).
I find that the student received instructional services necessary to meet her / needs and to permit her to benefit from instruction. See Gagliardo, 489 F.3d at 112; see also Frank G., 459 F.3d at 364-65. At the , the student receives individual counseling, once per week, and group counseling, once per week, which is consistent with the CSE‟s recommendations (R. 107; Exs. SD-3 at 13, P-H at 2). During counseling sessions, students have an opportunity to express concerns or problems, individual al plans are reinforced, and students lean to generalize al techniques to their home and community (R. 108; Ex. P-H at 2).
3. Relevant Equities
I now turn to the issue of whether equitable considerations, e.g., notice, cooperation and reasonableness of cost, favor an award of tuition reimbursement. 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 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.
I find that there are no equitable reasons for limiting tuition reimbursement to the parent of the student in this matter. In the April 1, 2011 due process complaint notice, counsel for the student and the parent gave the DOE adequate written notice of the parent‟s intent to make a unilateral placement of the student at public expense (Exs. SD-8 at 2). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). The student was later admitted to the on May 12, 2011 (Ex. P-H at 1). There is also no contention or evidence indicating that the student‟s parent was uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student‟s tuition to the is unreasonable (Ex. P-L), see Carter, 510 U.S. at 16.
D. Compensatory Education
The parent‟s request for compensatory education must be denied (Ex. SD-8 at 3). Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y.
1997). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5). In New York State, a student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until his or she receives either a local or Regents high school diploma, see 34 C.F.R. § 300.102(a)(3)(i); 8 NYCRR § 100.5(b)(7)(iii), or until the conclusion of the ten-month school year in which he or she turns age twenty-one (21), see N.Y. Educ. Law §§ 3202(1), 4404(1), 4402(5)(b); 8 NYCRR §§ 100.9(e), 200.1(zz); see also 34 C.F.R. §§ 300.102(a)(1), (a)(3)(ii). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational serves for a substantial period of time. See Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008).
I find that the student is ineligible, as a matter of law, for the remedy of compensatory education because the student remains eligible to receive services under the IDEA. As of the date of this decision, the student is thirteen (13) years old and will remain eligible to receive education and related services until her receipt of a high school diploma, see 34 C.F.R. § 300.102(a)(3)(i); 8 NYCRR § 100.5(b)(7)(iii), or through the end of the ten-month school year in which she turns twenty-one (21) (Ex. SD-3 at 1), see N.Y. Educ. Law §§ 3202(1), 4404(1), 4402(5)(b); 8 NYCRR §§ 100.9(e), 200.1(zz); see also 34 C.F.R. §§ 300.102(a)(1), (a)(3)(ii).
E. Attorneys‟ Fees
The parent‟s request for attorneys‟ fees must be denied (Ex. SD-8 at 3). The IDEA does not authorize an administrative officer to award attorneys‟ fees or other costs to a prevailing party; and entitlement, if any, to such costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); see also Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). Since only a court can determine who is a prevailing party entitled to attorneys‟ fees, I conclude that I lack subject matter jurisdiction over this aspect of the parent‟s claim and dismiss it accordingly.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
Within 30 days of receipt of this Order, the Department of Education shall pay the student‟s tuition to the Center from the student‟s date of admission (i.e., May 12, 2011) through the end of the 2011/12 school year (i.e., through June 30, 2012). Dated: August 25, 2011
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer
JS:gc
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 JULY 14, 2011
PARENT
A. Reserved
B. Reserved
C. DOE Due Process Response, 4/7/011, 3 pages
D. Reserved
E. Letter from parent w/ proof of receipt, 1/26/11, 1 page
F. QCPC Discharge Summary, 5/20/11, 9 pages
G. Letter to parent from , 2/11/11, 1 page
H. Initial Progress Report, 5/25/11, 3 pages
I. Charts, 5/26/11, 7 pages
J. Program Description, 5/26/11, 4 pages
K. Treatment Summary, 5/26/11, 2 pages
L. Letters to Dr. , 9/14/10 & 9/23/10, 2 pages
M. al Educational Procedures, 8/18/08, 7 pages
N. Distinguishing Features, undated, 11 pages
O. Powerful Positive Programming Procedures, 5/02, 16 pages
P. Educational Progress of ly Disturbed Students at , 1/28/10, 9 pages
Q. Jose P. v. Ambach Decision, 1/5/82, 12 pages
R. Jose P. v. Ambach Order, 7/8/82, 5 pages
S. Parent‟s 2011 Tax Return, 2/25/11, 2 pages
T. FBA & BIP, 6/23/11, 10 pages
U. Charts, 7/8/11, 7 pages
DEPARTMENT OF EDUCATION
1. Psychiatric Evaluation & Referral Summary, 1/14/11, 4 pages
2. Confidential Psychoeducational Evaluation, 2/3/11, 4 pages
3. IEP, 2/8/11, 22 pages
4. History Update, 2/8/11, 4 pages
5. Request for Placement, 2/8/11, 1 page
6. Case Transmittal Form, 2/8/11, 1 page
7. CBST Assurance Checklist, 2/22/11, 1 page
8. Impartial Hearing Request, 4/1/11, 3 pages
IMPARTIAL HEARING OFFICER
I. Letter to parties from IHO, 4/18/11, 5 pages
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student‟s educational performance: (i) an inability to that cannot be explained by intellectual, , or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of or feelings under normal circumstances; (iv) a generally pervasive of or ; or
[3] The term “free appropriate public education” means 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 appropriate preschool, 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.
[4] Unlike the situation in Application of the New York City Sch. Dist., Appeal No. 10-115 at 13 (SRO January 24, 2011), where relief under Jose P. was denied, the parent here has alleged that the student was denied a FAPE for the 2009/10, 2010/11 and 2011/12 school years (Ex. SD-8 at 2-3). Based on the analysis set forth fully in Section C(1) of this decision, I find that the student was denied FAPE for the school years at issue.
[8] NYCRR § 200.4(d)(2)(xii). While the CSE‟s February 8, 2011 IEP for the student calls for her receipt of class instruction in all academic areas, it fails to identify the maximum class size or a specific staffing ratio for the student‟s classes (Ex. SD-3 at 1, 11). See 8 NYCRR § 200.6(h)(4). The CSE also failed to make a specific placement recommendation for the student. Instead, it deferred that decision to the CBST. The CBST has likewise failed to identify a recommended placement for the student in the six (6) months that have elapsed since the CSE‟s February 8th . (Exs. SD-3 at 1, SD-5, SD-6, SD-7). Without these critical components, I cannot find that the CSE‟s IEP for the student was reasonably
[5] To the extent that these IEP deficits 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.”).
[6] Functional assessment means the process of determining why a student en s in s that impede and how the student‟s relates to the environment. The functional assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem , the definition of the in concrete terms, the identification of the contextual factors that contribute to the (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).