NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CORRECTED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 20, 2012
March 5, 2012
April 23, 2012
May 3, 2012
May 18, 2012
Actual Record Close Date: June 20, 2012
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2012
Attorney — Student
Parents
Chairperson’s Designee — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON MARCH 5, 2012
Attorney — Student
Parents
Chairperson’s Designee — DOE
Special Education Teacher, (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON APRIL 23, 2012
Attorney — Student
Parents
Co-Director of, — Student
(via telephone) — Student
Chairperson’s Designee — DOE
Special Education Teacher, via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON MAY 3, 2012
Attorney — Student
Parents
Co-Director of — Student
(via telephone) — Student
Neuropsychologist (via telephone) — Student
Chairperson’s Designee — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON MAY 18, 2012
Attorney — Student
Parents
DR., Psychiatrist (via telephone) — Student
Teacher (via telephone) — Student
Chairperson’s Designee — DOE
— DOE
I. INTRODUCTION-ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parent in a due process complaint notice dated October 3, 2011 (later amended on October 13, 2011). 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 parent and/or directly pay for costs associated with the student’s unilateral private placement at the for the 2011/2012 school year (Exs. SD-1, SD-2).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§
200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
I was appointed by the DOE to hear this matter on October 7, 2011. Hearings in this matter were held on: January 20, 2012; March 5, 2012; April 23, 2012; May 3, 2012; and May18, 2012.[2] 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).
III. FACTUAL BACKGROUND
At the time of the hearing request, the student was ”) and educationally classified as having (“ ”) (Exs. SD-1 at 2, SD-3 at 10, P-C at 2).[3] For the 2011/2012 school year, the student attended a ”) (Exs. SD-14, SD-15, P-D at 2, P-H). The Commissioner of Education has not approved as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. SD-1, SD-3). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz). The student began to attend a ; there were no problems noted in his learning or adjustment. An administration of the Wechsler Preschool and Primary Test of Intelligence - Third Edition was done in December 2004 when the student was four (4) years, seven (7) months old. At that time, the student presented as “energetic” and “quite active,” with varying interest and trouble sustaining focus on tasks but responding well to encouragement and persuasion. He demonstrated very strong verbal skills (i.e., Verbal IQ - percentile) and average visual-perceptual abilities (i.e., Performance IQ percentile). His lowest performance (i.e., low average) was on a test of visual-motor integration that involved copying a symbol/number code, suggesting the need for occupational therapy intervention which was subsequently pursued (Ex. SD-7 at 2-3).
The student entered kindergarten at in the program. No academic or were noted in , although the teacher commented that the student needed encouragement to speak and read in Spanish. In second grade, the student transferred to , the , and enrolled in a regular general education curriculum. He adjusted well to his new school and was described by his teacher as a “ .” According to his teachers’ reports, the student’s academic skills developed at a generally good pace, with improvement needed in rereading and editing his written work. However, the student’s teachers reported concerns about the student’s in class and . One teacher stated: “One area we have worked with [the student] on this year is his . He tends to have . [The student] can be very , ” (Ex. SD-7 at 3).
Based on an educational classification of the student received to address his . Accordingly to the student’s April 2008 IEP, these difficulties affected his “attentiveness in class, expressive written communication, participation in organized group activities and play at recess.” Initially, the student received three times per week for thirty minutes per session (Ex. SD-7 at 3).
As part of a triennial evaluation in April 2008, the student was seen for a evaluation through the DOE. He was administered the KTEA Brief which found his academic skills in reading and math to be at grade level. An assessment of his writing skills showed marked improvement in handwriting and visual-motor integration when drawing figures. Based on the student’s improvement, the student’s occupational therapy services were reduced in and one group session per week. At the time, it was noted that the student’s teacher felt he was “slightly less mature than his peers, is very active and experiences some attention issued during instruction” (Ex. SD-7 at 3).
In a fall 2008 administration of the Wechsler Intelligence Scales for Children Fourth Edition (“WISC-IV”), the student’s composite scores were: Verbal Comprehension Index ( ); Perceptual Reasoning Index ); and Full Scale IQ ( ) (Ex. SD-7 at 18). On this cognitive testing, the student demonstrated . Dr. indicated that this test profile was consistent with the student’s history at home and at school, including (Ex. SD-7 at 7, 12).
Academic testing conducted by Dr. at the same time did not reveal a . On the Wide Range Achievement Test - Expanded (“WRAT-E”), the student scored in reading ( ) and in mathematics ( ). On the Woodcock Johnson Tests of Achievement Third Edition (“WJ-III”), the student obtained the following scores: letter word identification ( ); writing samples ( ); word attack ( ) and sound awareness ( superior). From these scores, Dr. concluded that the student’s skills had generally progressed well, and that he did not demonstrate the decoding, comprehension or phonological processing difficulty that would point to a (Ex. SD-7 at 7-8, 12, 19).
As to the student’s at that time, Dr. stated that the student “presented as a who is . ” (Ex. SD-7 at 11, 13).
Regarding educational recommendations, Dr. stated that “the ideal classroom setting for [the student] would be one that would provide a small class size and a high degree of structure and individualized support/attention.” was also recommended on a twice weekly basis to work on graphomotor skills, including handwriting, as well as beginning keyboarding skills (Ex. SD-7 at 14).
During the 2010/11 school year, the student continued to attend the , where he was in a mainstream class of approximately thirty (30) children. At that time, the student was also seen by a private tutor, once a week for an hour and a half after school, for help with writing and homework. The student’s report cards from the , reflected that the student was meeting basic standards in all academic areas and proficiency standards in many aspects of those academic areas. Although the student was capable of reading on grade level, he in inferential understanding of text. In writing, the student struggled to expand on his ideas and was inconsistent in applying writing mechanics and revising sentence structure. As to his , the student sometimes had difficulty listening attentively in group settings and functioning appropriately in less structured environments. At home, the student had great difficulty managing his homework and struggled to , generate ideas and make abstract connections (Exs. SD-4 at 1-2, SD-5, P-C at 2-3).
The student was reevaluated by the DOE in March of 2011 using selected subtests from the Wechsler Individual Achievement Test - Second Edition. Based on those test results, the student demonstrated strong decoding skills (word reading - ) but with a relative weakness in inferential reading comprehension ( ) and word knowledge. The examiner posited that the student’s “may be the result of insufficient practice with building independent reading skills” based on the student’s limited reading for pleasure. She also noted that he “appears to benefit from and from adults to help him demonstrate his potential and make sense of inferential information . . . He seemed to benefit from hearing objectives repeated, especially when multiple steps were involved.” In writing and spelling ( ), the student’s skills were in . It was noted that he “needs to be encouraged to add details” to his writing and can or generating ideas without feedback and talking through what he plans to write. In math, the student expressed more confidence in his skills, performing in the on the numerical operations subtest ( ) and the on the math reasoning subtest ( (Exs. SD-4 at 4, P-C at 3).
By the spring of 2011, the student was reportedly , with no or . At that time, the student was taking ) and appeared to be .
Dr. conducted another evaluation of the student over three (3) days in April of 2011. On a readministration of the WISC-IV, the student’s composite scores were: Verbal Comprehension Index ( ); Perceptual Reasoning Index ); and Full Scale IQ ), all of which were higher than the 2008 scores (Ex. P-C at 13). Academically, Dr.
described the student’s performance as follows:
In summary, showed continued strong ability in mathematics in contrast to below expected performance on tests of reading. Variability was marked when he was decoding and encoding single words, and [the student] due to his tendency to
Inferential comprehension provided with [the student’s] outstanding verbal reasoning ability as seen on the earlier tests of the WISC-IV. In the absence of a clear , [the student’s] reading weakness appears to stem from and cognitive demands of the reading and comprehension process (Ex. P-C at 8).[4]
From the student’s responses on the Candor Sentence Completion Test for Children, Dr. determined that the student and “a .” Dr. described the latter as “a depressive reaction that results when repeated efforts end in failure” (Ex. P-C at 2, 10).[5]
“Given the combination of his high intelligence and the of his and its impacts on ,” Dr. stated that the student required, “a special education placement that provides him with both , as well as significant structure and support. He needs to be educated in a small, structured classroom environment in a small, nurturing school where he can receive full time special education services with (i.e., children who have at least and
)” (Ex. P-C at 11).
At a meeting held on March 31, 2011, the CSE developed an IEP for the student for the 2011/2012 school year. The CSE recommended that the student receive direct special education teacher support services (“SETSS”), three (3) times per week in a separate location, to support his general education instruction in a community school.
The CSE also recommended that the student receive related services of specialized transportation and , two (2) times per week for forty (40) minutes per session. Testing accommodations of extended time, separate location and revised test directions were also recommended for the student by the CSE (Exs. SD-3 at 6-10, SD-8).
In a Final Notice of Recommendation, also dated March 31, 2011, the DOE identified the , the , as the student’s placement for the 2011/2012 school year Ex. SD8). In an April 13, 2011 e-mail to , the school psychologist who attended the March 31st CSE meeting, the parent approved of the SETSS service recommendation (Exs. SD-8, SD-9).
On May 10, 2011, the parent completed an application for the student’s enrollment at for the 2011/2012 school year (Ex. SD-13).
In a letter dated August 16, 2011, the parent confirmed that she had notified the CSE at the March 31st meeting of her intent to pursue an independent evaluation of the student. The parent noted that the student had been evaluated by Dr. n April of 2011 and that Dr. had concluded that the student “requires a special education placement.” The parent stated that she “explore[d] other special education options” after receiving Dr. ’s findings and that the student had been accepted to for the 2011/2012 school year. The parent rejected the DOE’s proposed program for the student at P.S. the Manhattan School for Children, and requested another CSE meeting to consider Dr. ’s educational recommendations. The parent concluded her letter by stating that she would place the student at at public expense if an appropriate program and placement was not offered to the student (Ex. P-E).
In a February 7, 2012 letter to the CSE, the parent requested that occupational therapy and physical therapy testing of the student be contracted out. The parent also confirmed that the CSE would accept Dr. ’s independent neuropsychological evaluation from April 2011 in lieu of further testing. The parent also reserved “the right to seek reimbursement at public expense for this testing” (Ex. SD-16).
IV. POSITION OF THE PARTIES
A. The Department of Education
The parent’s tuition reimbursement claim should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment for the 2011/2012 school year was an inappropriate and overly restrictive placement for the student, which also failed to provide him with needed occupational therapy. Given the parent’s application for financial aid from and the designation of “Connors” on the enrollment contract, it can be reasonably inferred that the parent does not have an actual tuition obligation for which relief may be awarded. Other equitable considerations which mitigate against an award include: inadequate prior written notice to the of the parent’s intent to seek a unilateral placement of the student at public expense and a gap of approximately three and one-half months between the time the parent received Dr. s April 2011 evaluation and when the parent shared that evaluation with the CSE. The parent’s claim for reimbursement of Dr. ’s April 2011 independent evaluation must also be denied (R. 27-28).
B. The Parent
The DOE should be ordered to reimburse the parent and/or directly pay for the student’s tuition to for the 2011/2012 school year. The DOE denied the student a free appropriate public education for the 2011/2012 school year. The CSE which developed the student’s IEP for the 2011/2012 school year was not duly constituted in that it lacked a special education teacher of the child, a regular education teacher of the child, and an additional parent member. The IEP goals and objectives were not reasonably calculated to confer educational benefit upon the student. The CSE also failed to recommend an appropriate program for the student. The proposed program lacked adequate or appropriate support and, given its size, failed to offer sufficient opportunity for one-onone instruction. There was also no SETSS class for the student’s grade ( at for the 2011/2012 school year. The DOE also intended to place the student in a special class, although the student’s IEP called for his placement in a special class. was an appropriate program for the student and the relevant equities support a reimbursement award. The DOE should also be ordered to pay for transportation to and from related service costs, and the cost of Dr independent evaluation from April 2011 (Ex. SD-1 at 2-4).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“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.[6] 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 least restrictive environment (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).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, 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. Dep't of Educ., 471 U.S. 359, 369-70 (1985).
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. CSE Membership
Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parent alleges that the March 31, 2011 CSE was not properly constituted because it lacked a special education teacher of the child, a regular education teacher of the child and an additional parent member (Ex. SD-1 at 2).
An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
The hearing record reflects that Ms. participated in the March 31, 2011 CSE meeting as the special education teacher of the student (Ex. SD-3 at 13). Ms. stated at the hearing that Ms. is a SETSS provider at , the , who provided SETSS services to , such as the student who is the subject of this hearing, during the 2010/11 school year (R. 191; Ex. SD-5).
The hearing record also reflects that Ms. participated in the March 31st CSE meeting as the general education teacher of the student (Ex. SD-3 at 13). Progress reports of the student’s education at , the , and testimony from the parent reflect that Ms. was the student’s drama teacher during 2010/11 school year (R. 680-681; Ex. SD-5 at 8).
The parent also argues that the CSE which met on March 31st was not properly composed because it did not include the participation of an additional parent member. Although not required by the IDEA, see 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321, New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student’s IEP, see N.Y. Educ. § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). New York law provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting. See N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). Parents have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE. See 8 NYCRR § 200.5(c)(2)(v).
Under New York State law, CSE subcommittees have the authority to perform the same functions as the CSE, with the exception of instances in which a student is considered for initial placement in a special class, or a student is considered for initial placement in a special class outside of the student’s school of attendance, or whenever a student is considered for placement in a school primarily serving student with disabilities or a school outside of the student’s district. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR § 200.3(c)(4). State law further provides that when a district is permitted to convene a CSE subcommittee, the subcommittee need not include an additional parent member. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR §§ 200.3(c)(2)-(5).
In this case, it is uncontested by the parties that an additional parent member was not present at the March 31, 2011 CSE meeting and that the parents did not waive the participation of an additional parent member from the meeting (R. 95; Ex. SD-3 at 13). However, the evidence contained in the hearing record establishes that the student was not being considered for initial placement in a special class, a school primarily serving students with disabilities, or a school outside of the student’s district. Therefore, under State regulations, the March 31st CSE could have permissibly proceeded as a CSE subcommittee, and an additional parent member would not have been a required participant (Ex. SD-3). See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR §§ 200.3(c)(4)(i)-(iii). Consequently, I do not find that the absence of an additional parent member from the March 31st CSE meeting impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process, or 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).
C. Adequacy of IEP Goals
The parent alleges that the annual goals developed for the student did not adequately address his particular needs (Ex. SD-1 at 2). An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that 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 CSE’s IEP for the student for the 2010/11 school year established annual educational goals which were reasonably related to his educational deficits. According to the student’s fifth grade progress, cited by Dr. in her April 2011 evaluation, the student displayed a: [P]ersistent weakness in inferential understanding of text. In writing, [the student] still . In terms of his in group settings and functioning appropriately in less structured environments (Exs. SD-5, P-C at 2).
The student’s IEP for the 2011/2012 school year included annual goals in inferential and explicit comprehension, expressive language organization strategies, and attention and distractibility which were consistent with those educational deficits identified in the student’s evaluations and described what he could reasonably be expected to accomplish within a ten month period (Exs. SD-3 at 4-5, SD-5, P-C at 2). The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Ex. SD-1 at 9-16, 19). 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).
D. Substantive Appropriateness of Proposed Program
As noted earlier, 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. 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.
From the credible testimony offered by Ms. , I find that the DOE’s recommended program would have provided the student with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction. Ms. is employed by the DOE as a licensed special and general education teacher at , and is trained in the to language instruction (R. 135, 234).
Ms. testified that a seat in her SETSS class was available for the student for the 2011/2012 school year. The SETSS group was specifically designed to address reading comprehension issues similar to those noted on the student’s IEP (R. 189; Ex. SD-3). Ms. stated that the student would have been functionally grouped academically, to address his needs in comprehension and inferencing (R. 191).
Ms. credibly testified that she would have provided the student with direct instruction on his IEP goals using a teacher-facilitated guided reading group (R. 145). Ms. provided numerous examples of specific strategies to support the student with his reading and organizational issues such as: questioning charts, previewing; planners; graphic organizers and semantic webs to assist the student to complete tasks independently (R. 146-149). Ms. testified that she would have worked collaboratively through a team approach with the student’s and his general education teacher (R. 148). Ms. also testified that she would have assisted the student with budgeting time to complete class and homework assignments (R. 149).
Alternatively, while Dr. stated in her April 2011 evaluation that the student “requires a special education placement,” I do not find that the data yielded from her testing reflects “ ” which premised that recommendation (Ex. P-C at 11, 13-15). I also note that although a CSE must consider parents' suggestions or input offered from privately retained experts, the CSE is not required to adopt such recommendations for different programming. See e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004); E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 (S.D.N.Y. 2010).
Having determined that the DOE offered the student a FAPE for the 2011/2012 school year, it is not necessary to reach the issues of whether the student’s private placement at was appropriate or whether equitable considerations support the parent's tuition reimbursement claim. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
E. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parent of having secured private related services for the student during the 2011/2012 school year (other than those included in the cost of ’s tuition), or that the student was denied related services by the DOE prior to the 2011/2012 school year, the parent’s claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied (Ex. SD-1 at 4).
F. Transportation
The parent’s request for reimbursement for transportation costs to and from during the 2011/2012 school year is also denied (Ex. SD-1 at 4). Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. § 300.139(b)(1)(ii); Letter to Luger & Weinberg, 58 IDELR 199 (OSEP Dec. 6, 2011).
The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law §
4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994).
Here, as there were no bills or other evidence of the actual transportation costs incurred by the parent, I must dismiss this aspect of the parent’s claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01012 (SRO Dec. 19, 2001).
G. Independent Educational Evaluation (“IEE”)
The parent is entitled to reimbursement of the cost of Dr. ’s April 2011 independent evaluation (Exs. P-K, P-L). The Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducts an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district’s evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
The evidence in the hearing record reflects that the CSE conducted a March 25, 2011 educational evaluation of the student which the parent recalled was shared with her prior to the March 31, 2011 CSE meeting (R. 684-685; Exs. SD-3, SD-4). At the March 31st meeting, the parent voiced her disagreement with that evaluation (R. 685). Cf. R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent’s claim for an IEE at public expense). Later, the student was evaluated independently by Dr. over three (3) days in April 2011 (Ex. P-C). In a letter dated August 16, 2011, the parent advised the CSE of the IEE and reserved the right to later seek reimbursement for that evaluation (Ex. P-E). On October 3, 2011, the parent filed a claim for reimbursement for the IEE (Ex. SD-2). There was no evidence offered by the DOE that it initiated a hearing to show that its March 25th educational evaluation of the student was appropriate. Cf. 34 C.F.R. §§ 300.502(b)(2)(i)-(ii). Therefore, the parent is entitled to reimbursement of the cost of the IEE at this time.
H. Attorneys’ Fees
The parent’s request for attorneys’ fees must be denied (Ex. SD-1 at 4). 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.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) the parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2011/2012 school year is DENIED;
(2) the parent’s claim for reimbursement of transportation for the student to and from the for the 2011/2012 is DENIED;
(3) the parent’s claim for reimbursement of the cost of related services from September 2011 through June 30, 2012 is DENIED;
(4) the parent’s claim for attorneys’ fees is DENIED; and
(5) the parent’s claim for reimbursement for the cost of the evaluation completed by Dr. in April 2011 is GRANTED. Within 30 days of the date of this Order, the DOE shall reimburse the parent for the cost of said evaluation. Dated: June 25, 2012 Corrected Date: June 27, 2012 (Actual Record Close Date has been Corrected)
______________________________
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 JANUARY 20, 2012
DEPARTMENT OF EDUCATION
1 Due Process Complaint Notice/Impartial Hearing Request (corrected),
10/13/11, 5 pp. 2 Due Process Complaint Notice/Impartial Hearing Request, 10/3/11, 5 pp. 3 Individualized Education Program (IEP), 3/31/11, 13 pp. 4 Educational Report, 3/25/11, 4 pp. 5 Progress Reports, 2/2011, 9 pp. 6 Exam History Inquiry, undated, 1 p. 7 Evaluation, 10/08-12/08, 19 pp. 8 Final Notice of Recommendation, 3/31/11, 2 pp.. 9 E-mail re: SETSS services, 4/13/11, 1 p. 10 [Reserved] 11 Subpoena, , 1/11/12, 2 pp. 12 Subpoena, , 1/11/12, 2 pp. 13 Application, 5/9/11, 4 pp.
14 Tuition Contract, 3 pp.
15 Proof of Tuition Payment, 1/12/12 1 p.
IMPARTIAL HEARING OFFICER
I Confirmation of Extension, 11/8/11, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 5, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II Confirmation of Extension, 1/20/12, 1 p. III Confirmation of Extension, 2/14/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 23, 2012
PARENT
A [Reserved] B Individualized Education Program (IEP), 3/31/11, 8 pp. C Evaluation, 4/11, 15 pp. D Educational Review, 2/10/12, 4 pp. E Letter to CSE from Parent, 8/16/11, 2 pp. F [Reserved] G Program Description, Undated, 1 p. H Student Progress Report, 2011/2012, 9 pp.
I. Student Class Schedule, 2011/2012, 1 p. J Curriculum Vitae, , Ph.D., undated, 7 pp. K Invoice, , Ph.D., 4/11, 1 p. L Proof-of-Payment, Evaluation, 4/29/11, 1 p.
DEPARTMENT OF EDUCATION
16 Memo to from Parent, 2/7/12, 1 p.
IMPARTIAL HEARING OFFICER
IV Confirmation of Extension, 3/13/12, 1 p. V Confirmation of Extension, 4/20/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
VI Confirmation of Extension, 5/18/12, 1 p. VII Confirmation of Extension, 6/18/12, 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 those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 122-124, 209-211, 690-692; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO- V, IHO-VI, IHO-VII).
[3] Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10).
[4] I must note, however, that Dr. ’s analysis of the student’s academic functioning stands in stark contrast to the data reported in her evaluation. From my review of the scores derived from the NEPSY-II, WJ-III, the WRAT-E, the Gray Oral Reading Test - Fourth Edition, and the Test of Written Language - Third Edition, not a single subtest was below the average range. Indeed, the student’s decoding skills, which Dr. described as “variable,” was measured by the WJ-III word attack subtest as ). Likewise, the student’s reading fluency, which Dr ,” measured on the WJ-III (Ex. P-C at 14-15).
[5] To the extent that Dr. refers here to the student’s academic efforts while at , , I note that earlier in her evaluation, she stated that the student “is meeting basic standards in all academic areas and proficiency standards in many aspects of these academic areas” (Ex. P-C at 2, 10).
[6] 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 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.