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: January 11, 2012 Actual Record Close Date: February 3, 2012 Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2012
Attorney — Student
Parents
Administrator (via telephone) — Student
Teacher (via telephone) — Student
Speech Pathologist (via telephone) — Student
Psychologist (via telephone) — Student
District Representative — DOE
School Psychologist (via telephone) — DOE
— DOE
I. PROCEDURAL HISTORY
This hearing was requested on October 13, 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 fund the student‟s private tuition and transportation to the School for Language and Communication Development (“SLCD”) for the 2011/12 school year (Ex. P-A ).[1] I was appointed by the DOE to hear this matter on December 16, 2011 following the recusal of another hearing officer. A hearing in this matter was held on January 11, 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).
II. FACTUAL BACKGROUND
At the time of an August 9, 2011 meeting of the DOE‟s Committee on Special Education (the “CSE”), the student was old and scheduled to begin his year in September 2011 (Exs. SD-1 at 1, P-A at 2). The student's eligibility for special education and related services as a student with a impairment is not in dispute in this hearing (Exs. SD-1 at 10, P-A at 2-4). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR 200.1(zz)(11).[3]
At ) months, the student was evaluated at . determined that he of skills. A comprehensive evaluation conducted at the same time revealed that the student‟s were within normal limits and would likely develop at . An evaluation, also conducted at that time, noted that the were at a “ ” level (Ex. P-J at 3).
When the student was he receive another . The and ”), a test of general
; the results of which placed him . His , and an . In addition, this evaluation reported that the student had (Ex. P-J at 3).
The student also received a (“ ”) at this time, which revealed a delay in , including . On an , the student displayed . Based on the results of these evaluations, the at (3) (Exs. P-J at 3, P-K at 1).
During the 2010/11 school year, when the student was old, he attended a special class at the . At this location, the student also received , and . According to a questionnaire completed by , the student‟s teacher at , the student does not have . Ms. described the student as , but -confidence. Ms also stated that the student can become distracted and lose concentration in class. Given these delays, team recommended that the student attend a collaborative team teaching (“ ”) class for (Exs. P-C at 1, 18, P-J at 1, 3, P-K at 1).
At a June 6, 2011 meeting, the CSE recommended for the 2011/12 school year, the student‟s , that he receive instruction in a program. Related services of individual and group , individual and individual were also recommended for the student. Unlike the year before, however, the CSE determined that the student was ineligible for special education transportation (Exs. P-A at 2, P-B at 8, 11, 12, P-C at 1).
Dr. conducted a evaluation of the student in May and June of 2011. On the the student obtained a full scale IQ score of , which placed his performance in the average range of overall cognitive functioning relative to same age peers. This full scale IQ score was comprised of: a verbal IQ score of percentile, range); a performance IQ score of percentile, range); a processing speed score of percentile, range); and a general language score of percentile, range). These scores demonstrate that the student possesses an average ability to think about information using words and pictures, to understand spoken language, and to process details quickly and efficiently (Ex. P-J at 4-5).
The was used to assess the student‟s ). The statute subtest required the student to seconds, while the . This subtest required the student to attend to the examiner in order to know when the task began and ended. This subtest also measured the student‟s ability to for over minute. On this task, the student performed in the range (standard score percentile). This score suggested that the student and . Dr. Alter found “ . While the student was too young to make a formal diagnosis of Dr. Alter considered the (Ex. P-J at 7-8).
The student‟s mother completed an scale concerning his behavior. According to her ratings, the student had “ , . These ratings suggested to Dr. that the student be considered for DSM-IV diagnoses of and (Ex. P-J at 10).
On the Vineland Adaptive Behavior Scales - Second Edition (“Vineland -II”), the student‟s mother reported that his (standard score 114, 82nd percentile). The student‟s and play and were both . The student placed reasonable demands on was careful when , could , could feelings when he (Ex. P-J at 11).
The Vineland-II also measured the student‟s daily living skills. The student‟s overall score in this area placed him at the adequate level (standard score ). His ability , . (Ex. P-J at 11).
Dr. ”) to the student which is a test of , including The student‟s overall performance on academic and language skills was in the average range (standard score percentile). This score was comprised of percentile) and (standard score percentile), as well as ) and receptive skills (standard score percentile). Overall, the student was able to . His had difficulty, however, in . From this information, Dr. Alter opined that the student might suggested (Ex. P-J at 11-12).
Given the student‟s , Dr. rejected a program and recommended for the 2011/12 school year, the student‟s , that he be educated in a small, structured class of no more than twelve (12) students in total. In such a class, Dr. recommended that the student receive in the underlying skills needed to read, such as , and strategies. Dr. also recommended that the student receive , three (3) times per week (Ex. P-J at 13).
A evaluation of the student was also conducted in June of 2011. Language testing administered at this time included the Clinical Evaluation of Language Fundamentals - Preschool (“CELF-Preschool”).[4] The student achieved a Total Language (standard) score on the CELF-Preschool of , which was within the range. The discrepancy between the student‟s receptive language (standard) score ( ) and his expressive language (standard) score ( ) was described by the evaluator as “significant” and indicative of “an .” The student‟s expressive language was notable in the areas of . The combination of the student‟s expressive language deficit and “significant [deficits with] ” put him “at risk of academic difficulties.” A private school with low ratio for children with language learning disabilities and attention deficits was deemed a preferable placement by the evaluator than a CTT classroom with up to twenty-five (25) students (Ex. P-K at 2-4).
In a June 21, 2011 letter to the CSE, the parent requested another meeting in light of her determination that the CSE‟s recommended program for the student was inappropriate (Ex. P-D at 1). In a July 8, 2011 letter to the CSE, the parent noted that she had not yet received an “official copy of the [June 6th] IEP,” the report on which that IEP was based, or a placement letter. The parent informed the CSE of her intent to secure independent evaluations. The parent also reiterated her request for another CSE meeting (Ex. P-D at 3).
In a letter dated July 11, 2011, the DOE informed the parent in a final notice of recommendation that the student had been placed at ) for the 2011/12 school year (Ex. SD-2).
In a July 18, 2011 letter to the CSE, the parent informed it of her unsuccessful attempts to contact the proposed placement and of her reservation of “the right to seek reimbursement for any unilateral placement, should it become necessary” (Ex. SD-5).
On or about July 28-29, 2011, the parent submitted to the CSE copies of Dr. Alter‟s neuropsychological evaluation and the evaluation (Ex. P-D at 4, 5).
While the CSE reconvened on August 9, 2011, it did not revise the student‟s recommended public program (Exs. SD-1 at 10, P-A at 2-3, P-B).
In a letter dated August 12, 2011, the DOE informed the parent in a final notice of recommendation that the student had been placed at ) for the 2011/12 school year (Ex. SD-3). On that same day, the parent signed a contract with the for the student to attend that school in the fall (Ex. P-E).
In a letter dated August 15, 2011, the parent informed the CSE that she was rejected the recommended public program and would be unilaterally placing the student at the at public expense for the 2011/12 school year. The parent also requested that public transportation be arranged for the student to attend in the fall (Ex. P-D at 6-7).
In a letter dated September 16, 2011, the parent informed the CSE that based on her visit to the proposed placement, she continued to believe the recommended public program was inappropriate, that the student had been unilaterally placed at the and of her intent to seek public reimbursement for that unilateral placement (Ex. P-D 8-9)
III. POSITIONS OF THE PARTIES
A. The Parent
The student is entitled to reimbursement and/or direct payment for the student‟s tuition and transportation to the for the 2011/12 school year. The development of the recommended public program for the student was procedurally flawed and, given its size, the class would not have offered the student a free appropriate public education. The program, in contrast, provides the student with instruction and services that are specially designed to meet his unique learning needs. The relevant equities also support a reimbursement award (R. 29-31; Ex. P-A). Alternatively, given the DOE‟s delay in offering the student a program, the student is entitled to a Nickerson letter authorizing the student to attend the for the 2011/12 school year at public expense (R. 29, 31-32; Ex. P-A at 3). The parent also seeks reimbursement for the independent evaluations she secured at her own expense (R. 37-41).
B. The DOE
The parent‟s tuition reimbursement claim for the 2011/12 school year should be denied. The student was offered a FAPE for the 2011/12 school year which complied with all procedural requirements and was reasonably calculated to enable the student to receive educational benefits. All the evaluations before the CSE, both public and private, demonstrate that the student was functioning intellectually and academically in the average range and was capable of benefitting from instruction in the recommended CTT class (R. 32-36).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General 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 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.[5] 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).
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. Independent Educational Evaluation (“IEE”)
The parent is entitled to reimbursement for the IEEs of student she secured. 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); see also 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). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducted an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1); see also R.L., 363 F. Supp. 2d at 234-35. 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); 8 NYCRR § 200.5(g)(1)(iv); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 534, 549 (D. Conn. 2002) (upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate). 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).
In a letter dated July 8, 2011, the parent notified the CSE of her disagreement with the recommended CTT program and of her intent to secure IEEs of the student at public expense (Ex. P-D at 2-3). Thereafter, the parent secured an independent neuropsychological evaluation and an independent speech/language evaluation (Exs. P-J, P-K). The parent transmitted both independent evaluations to the CSE on July 28, 2011 and July 29, 2011 (Ex. P-D at 4-5). Given that the CSE failed to ensure either that the IEEs were provided at public expense, or initiate an impartial hearing to show that its evaluations of the student were appropriate or that the IEEs obtained by the parent failed to meet DOE criteria, see 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv), the parent is entitled to reimbursement for both IEEs, see Application of a Student with a Disability, Appeal No. 08-087 at 18-19 (SRO December 15, 2008), rev’d on other grounds, G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d. 552 (S.D.N.Y. 2010).
Alternatively, while the State Review Officer has previously dismissed an IEE reimbursement claim where a parent challenged the appropriateness of a child‟s IEP rather than a specific school evaluation, see Application of a Student with a Disability, Appeal No. 11-001 at 6-7 (SRO February 23, 2011), as the parent here was not provided a copy of the public psychoeducational evaluation upon which the CSE‟s June 6, 2011 IEP for the student was based, I find that the parent‟s rejection of the proposed program and stated intent to pursue independent evaluations provided the DOE with sufficient notice of her rejection of the public evaluations to preserve her right to seek an IEE at public expense (Ex. P-D at 2-3), see 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1).
C. Transportation
I find that the student has been improperly denied transportation by the DOE to the during the 2011/12 school year (Ex. P-A at 5). The Education Law requires that school districts provide transportation to non-public school students within the same milage limits established for resident students attending public schools. See N.Y. Educ. Law § 3635. Additionally, the Education Law requires that a school district provide transportation to a student with a disability where a parent makes a unilateral placement to a school which offers a program similar to the program recommended in the child‟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). Consistent with these requirements, the DOE is obligated to provide the student with transportation to the SLCD during the 2011/12 school year.[6]
On the related issue of the parent‟s request for the student to receive door-to-door special education transportation, I note that the CPSE had recommended some unspecified form of special education transportation for the student for the 2010/11 school year (when he attended a 12:1:2 special class at the VOA BELC), yet the CSE reversed this recommendation for the 2011/12 school year without explanation (Exs. SD1 at 10, P-A at 5, P-B at 11, P-C at 1). From my review of the hearing record, I do not find that the student‟s physical, social/emotional, behavioral or management needs as described in Dr. Alter‟s June 2011 neuropsychological evaluation, the June 6, 2011 IEP or the August 9, 2011 IEP establish that the student presently requires door-to-door special education transportation to school (Exs. SD-1 at 1-2, P-B at 1-3, P-J). See, e.g., Appeal of Wilhelm (Bd. of Educ. of the Onondaga Cent. Sch. Dist.), Decision No. 16,071 (Comm‟r of Educ. May 31, 2010) (noting that the law does not generally require a school district to provide transportation for the pupil directly to and from home and that boards of education have discretion to require students to walk to pick-up points from which transportation will be provided).
D. Jose P. Relief
The parent also seeks a Nickerson letter allowing the student to attend the SLCD at the DOE‟s expense (R. 43-46, 185-186; Ex. P-A at 3, 5). A “Nickerson letter” is a letter from the DOE authorizing a parent to place a student in a State-approved nonpublic school at no cost to the parent. 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 at public expense for the ten month 2011/12 school year. Students who will first become eligible for enrollment in school-aged programs by virtue of becoming five (5) years old prior to the ensuing December 31st (i.e., turning five students) shall be eligible for enrollment in an approved non-public school for the ensuing September if they had been referred for evaluation and placement on or before the preceding March 1st and no program recommendation and site offer was offered to them by June 15th (Exs. IHO-I at 1, 4, 10, SD-6).
The is a nonpublic school that has been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education instruction and services to students with disabilities (R. 187). See 8 NYCRR §§ 200.1(d), 200.7. According to the DOE‟s own record, the operative referral date of the student was February 10, 2011 (Ex. SD-6). That same document confirms that the student‟s recommended placement was due on or before June 15, 2011 (Ex. SD-6). The CSE first convened for its annual review of the student‟s special education program on June 6, 2011 and a site for that recommended program was not determined until July 11, 2011 (Exs. SD-2, P-B at 11). As the first site offer was not made by the DOE until approximately one (1) month after the June 15th deadline, the student‟s placement at the SLCD at public expense for the 2011/12 school year is authorized by Jose P. and, accordingly, the parent is entitled to a Nickerson letter.[7]
E. Tuition Reimbursement Analysis
Given my finding above, that the parent is entitled to a Nickerson letter, it is not necessary for me to determine whether the student is also entitled to attend the SLCD at public expense based on a Burlington/Carter analysis. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) (holding that 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); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985) (same). However, if I were required to conduct a Burlington/Carter analysis, I would find that the parent is entitled to tuition reimbursement and/or direct payment of the student‟s tuition to the SLCD. See Mr. A. v. New York City Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y. Feb. 1, 2011) (extending the remedy of tuition reimbursement to authorize direct payments to private school for educational services rendered where Burlington/Carter factors are satisfied); Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) (same).
The DOE failed to offer testimony of the student‟s proposed teacher (or similar evidence) demonstrating that the student would receive sufficient individualized and small group instruction in the class necessary to address his and “ ” (Exs. SD-1 at 1, P-J at 12-14, P-K at 4). While Ms. , a school psychologist who attended the August 9, 2011 meeting, testified that the CSE‟s recommendation for a class was based largely on the student‟s and LRE considerations, I do not find that DOE demonstrated that the student could achieve his IEP goals within the program with the assistance of supplementary aids or services (R. 54-56, 58-59, 75-76, Exs. SD-1at 3-5, 13, P-B at 3-7, P-J at 15-18). See Newington, 546 F.3d at 119.
In contrast, from the credible testimony offered by Ms. , Ms. , Ms. I find that the is educationally appropriate for the student because it is providing him with sufficient levels of specifically designed, individualized instruction to meet his unique educational needs (R. 100-150; Exs. P-G, P-J, P-K). See 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). The evidence offered by the parent also demonstrates that the student is making educational progress as a result of the individualized instruction he is receiving at the SLCD (Ex. P-N).
Lastly, I find that there are no equitable consideration which would mitigate against a reimbursement award to the parent. The parent provided the CSE with timely written notice of her intent to make a unilateral placement at public expense (Exs. SD-5, P-D at 6-9). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is no evidence that the parent failed to cooperate in any way with the CSE in its development of a special education program for the student for the 2011/12 school year. 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). There is also no contention that the cost of the SLCD is unreasonable (Exs. P-E, P-F). See Carter, 510 U.S. at 16.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) within thirty (30) days of its receipt of adequate proof-of-payment, the DOE shall reimburse the parent for the costs associated with Dr. June 2011 Evaluation and Ms. June 2011 Evaluation;
(2) within thirty (30) days of its receipt of adequate proof-of-payment, the DOE shall reimburse the parent for all costs associated with the student‟s transportation to and from the School for from September 1, 2011 through the date of this Order;
(3) from the date of this Order through June 30, 2012, the DOE shall provide the student with suitable transportation to and from the in a manner consistent with its obligations under Sections 3635 and 4402 of the New York Education Law; and
(4) within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent for all costs, including tuition, associated with the student‟s private placement at the for the 2011/12 school year; and/or directly pay the private school for any outstanding costs associated with said placement. Dated: February 22, 2012
______________________________
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 11, 2012
PARENT
A Impartial Hearing Request/Due Process Complaint, 10/13/11, 6 pp. B IEP, 6/6/11, 14 pp. C IEP, 7/30/10, 19 pp. D Correspondence b/w Parent and DOE, Various Dates, 9 pp. E Tuition Contract
2011/2012 School Year, 8/12/11, 2 pp. F Proof of Payment, Various Dates, 6 pp. G Letter to Parents from , 8/15/11, 1 p. H 2010 Tax Return, 2 pp. I Progress Report,
6/3/11, 6 pp. J Confidential Evaluation, 7/22/11, 18 pp. K Evaluation, 6/2011, 5 pp. L [Reserved] M DOE Progress Report for PS236, 2010/2011 School Year, 6 pp. N Progress Report for IEP Goals, 11/23/11, 5 pp. O Letter from CSE, Undated, 2 pp.
DEPARTMENT OF EDUCATION
1 IEP, 8/9/11, 13 pp.. 2 Final Notice of Recommendation, 7/11/11, 1 p. 3 Final Notice of Recommendation, 8/12/11, 1 p. 4 [Reserved] 5 Letter to CSE from Parent, 7/20/11, 1 p. 6 DOE Detail Placement, 8/26/11, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
I Parent‟s Closing Statement, 1/11/12, 11 pp. II DOE‟s Closing Statement, Undated, 3 pp. III Confirmation of Extension, 1/11/12, 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 once during the course of the hearing. In considering that request, 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 written closing statements 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, the request for an extension of the case compliance date was granted (R. 184-185; Ex. IHO-III).
[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student‟s educational performance. 8 NYCRR § 200.1(zz)(11).
[4] The CELF-Preschool is a tool that assesses receptive and expressive language ability. It explores the foundation of language form and content. The CELF-Preschool assists in the identification of children lacking basic language skills. The four language skills evaluated in the CELF-Preschool are: word meaning (semantics), word structure (morphology), sentence structure (syntax) and recall and retrieval (memory) (Ex. P-K at 2).
[5] 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.
[6] Although the parent‟s August 15, 2011 transportation request was beyond the April 1st deadline to request such services (Ex. P-D at 6), see N.Y. Educ. Law § 3635(2), there was no testimony offered that this was the reason the DOE did not provide the student with special education transportation to SLCD during the 2011/12 school year. Even if such a defense had been asserted, the DOE would still have been required to provide transportation were a reasonable excuse offered by the parent for the late filing. See id.; see also Appeal of Davila (Uniondale Union Free Sch. Dist.), 41 Educ. Dept. Rep. 419, 420 (Comm‟r of Educ. May 31, 2002).
[7] 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 2011/12 school years (Ex. P-A at 2). Based on the analysis set forth fully in Section E of this decision, I find that the student was denied a FAPE and therefore eligible for Jose P. relief.