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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 16, 2012
March 6, 2013
Actual Record Closed Date: March 22, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2012
ESQ., Attorney — Student
District Representative, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2013
ESQ., Attorney — Student
Parents
Parents
Psychologist (via telephone) — Student
DR., District Representative, CSE — DOE
Social Worker (via telephone) — DOE
School Representative (via telephone) — DOE
I. JURISDICTION - OVERVIEW OF 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 attorney for the student and the parents in a due process complaint notice dated July 2, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to continue the student’s residential placement at in for the 2012/13 school year (Ex. P-A at 4).[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
Following the filing of the July 2, 2012 due process complaint, the DOE denied each and every allegation contained in the complaint in a due process response dated July 11, 2012 (Ex. P-B at 1). On August 3, 2012, I was appointed by the DOE to hear this matter following the recusal of another hearing officer. A pre-hearing conference with the parties was held on August 10, 2012 to clarify the issues and establish a date for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). At a hearing held on August 16, 2012, the parents moved for an interim order on pendency, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m) (R. 11-12; Ex. P-A at 3). The DOE did not oppose the parents’ motion (R. 16). In an Interim Order on Pendency dated September 11, 2012, I determined that Woods Services was the student’s last agreed upon, or pendency, placement and ordered the DOE to continue the student’s placement at Woods Services at public expense, effective July 2, 2012, until such time at the due process proceedings in this matter were completed (Ex. IHO-I at 6-7). A hearing on the merits was thereafter held on March 6, 2013.[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 July 2, 2012 hearing request, the student ( ) years old and educationally classified as having (Exs. SD-1 at 1, P-A at 2, P-D at 11).[3] During the current school year (2012/13), the student receives instruction in an special class at ; a nonpublic residential program which has been approved by the Commissioner of Education as a school with which public school districts may contract to instruct students with disabilities (R. 43, 49, 69; Exs. SD-1 at 1, P-A at 1-2). 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 at 1, P-A at 2, P-D at 11). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
At one time, the student had considerable which were addressed through (Ex. SD-2 at 1). exhibited by the student increased following the onset of puberty. The student had (Exs. SD-1 at 2, P-D at 3). The student to and (Ex. SD-3 at 1). The student was initially admitted to for the 2003/04 school year and has thereafter remained in that educational placement without interruption (R. 43, 49, 68; Exs. SD-1 at 1, SD-2 at 1, P-A at 2, P-C at 4). The student is now and not taking other than those for seasonal allergies (Ex. SD-2 at 1).
According to conducted on May 10, 2010, the student’s Full Scale IQ placing her at the . She needs assistance with all activities of daily living skills as her levels of self-sufficiency are commensurate with her intellectual challenges (Exs. SD-1 at 1, P-D at 2).
Academically, the student’s math functioning is estimated to be level and her reading functioning and spelling is estimated to be at grade level. The student is reportedly more willing now, than in the past, to complete her assignments and she is said to enjoy reading short stories. The student uses punctuation and capitalization in writing her spelling sentences and can write short paragraphs using her spelling words. When motivated, the student is able to complete her homework. The student is able to tolerate twenty to thirty minutes of seated work with prompts. She can recite the alphabet and count to at least twenty. The student is able to sight read some familiar words and follow one-to-two step directions. She can identify the days of the week, her birthday, and the letters of the alphabet and most of their phonic sounds. She can also count and match colors (Exs. SD-1 at 1, SD-4, P-D at 2).
The student exhibits a significant to control and and in her day’s routine or during transitions between activities. There are also some perseverative aspects of her behavior: she tends “to get stuck” in wanting certain items or activities. She requires reminders and prompts to respect other people’s property and personal space. According to her therapists, the student is typically cooperative, with intermittent demonstrations of obstinance (Exs. SD-1 at 2, P-D at 3).
On or about February 9, 2012, the DOE proposed a change in the student’s placement to the at the , New York (Ex. P-C at 6). The parents objected to this proposed change in placement and filed a due process complaint on February 16, 2012. The DOE appointed IHO to hear the merits of the parents’ claim and six (6) hearing days were held between March and June of 2012 (Ex. P-C at 4). In his July 19, 2012 Findings of Fact and Decision, IHO held that:
The acceptance by when made was inappropriate and preceded the state’s certification of the program and therefore was unable to implement the student’s IEP. This constituted a failure of FAPE. I agree with the Parent for the reasons cited in its closing memorandum [that] this matter is to be referred back to the [Committee on Special Education] for a proper placement that is capable of implementing its IEP. I hereby Order the CSE to re-convene by August 15, 2012 to design an appropriate IEP and determine a proper placement (Ex. P-C at 11).
While the hearing before IHO Lloyd was ongoing, the CSE convened on May 18, 2012 to develop an IEP for the student for the 2012/13 school year (Ex. P-A at 2). The CSE recommended that the student receive twelve month instruction in an special class at a State-approved nonpublic school, supplemented by related services of individual occupational therapy, group counseling and a crisis management paraprofessional. The CSE did not recommend a specific placement for the student, but instead referred that determination to the DOE’s Central Based Support Team (the “CBST”) (Exs. P-A at 2, 11, P-D at 7-8).
In a letter dated May 25, 2012, Ms. , an admissions coordinator at Springbrook, wrote to Mr. , a CBST case manager, to say that, “after reviewing documentation and spending time observing [the student], we believe Springbrook is an excellent match for [the student’s] educational and residential needs.” Ms. noted that the 2012/13 school year program start date would be July 9, 2012 (Ex. IHO-II at 2).
On that same day (i.e., May 25, 2012) Mr. wrote to Ms. Chairperson for CSE 7, and stated:
Please be advised that a placement has been secured for the . . . student.
The Committee on Special Education (CSE) 7 must reconvene an Individualized Education Program (IEP) conference to add the placement recommendation:
“NYS Approved Nonpublic School-Residential” to the IEP.
Please consider the IEP modifications requested by the school in the attached
Acceptance Letter.
The CSE must ensure:
• the NPS participates in the conference,
• the conference/data is entered into SESIS,
• a Final Notice of Recommendation is issued to the parent,
• and a copy of the revised IEP is submitted to the NPS
(Fax the IEP to the Admissions Department at [])
If upon reconvening a meeting the IEP Team determines that this school is unable to meet the student’s needs, it must submit a detailed written rationale of its determination.
If you have any questions, please contact the CBST Administrator at [].
Thank you (Ex. IHO-II at 1).
The CSE reconvened, as directed by Mr. on June 14, 2012 and changed its recommended program for the student from an special class program to special class program. No rationale for this program modification was included in the student’s revised IEP (Exs. SD-1 at 8, P-D at 7).
The DOE also issued a Final Notice of Recommendation (“FNR”) to the parents on June 14, 2012, indicating that the student’s revised special education program would be implemented at (Ex. P-D at 1).
IV. POSITIONS OF THE PARTIES
A. The DOE
The hearing officer should affirm the determination of the DOE to place the student at Springbrook for the 2012/13 school year. is reasonably calculated to enable the student to obtain meaningful educational benefits (Ex. P-B at 3).
B. The Parents
is not an appropriate placement for the student. does not offer one-to-one crisis paraprofessionals, which is a critical component of the student’s special education program. The DOE’s determination to move the student from (a State-approved program at which the student has been enrolled since the 2003/04 school year) to Springbrook was irrational and not supported by the substantive evidence presented to the parents at a June 14, 2013 CSE meeting. The CSE committed both procedural and substantive errors in recommending a change in the student’s educational placement. The CSE team was not duly constituted to the extent it did not include the required special education teacher of the student. In addition, the CSE denied the parents a meaningful opportunity to participate in the development of the program recommendation because the placement recommendation was impermissible predetermined and the CSE had no other choice but to recommend Springbrook because it was directed to do so by the CBST case manager. The CSE also failed to give meaningful consideration to the opinion of the students’ treating psychologist, teachers, and other qualified providers at all of whom recommended the student’s continued placement in order to maximize the student’s access to positive supports and services (Ex. P-A at 2-3).
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.[4] 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)(1). 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. DOE’s Recommended Placement - Springbrook
In general, while the IDEA requires parental participation in determining the educational placement of a child, see 34 C.F.R. §§ 300.116, 300.327, 300.501(c), the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation, see White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980). The United States Department of Education’s Office of Special Education Programs (“OSEP”) has similarly opined that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. See Letter to Veazey, 37 IDELR 10 (OSEP 2001).[5]
Springbrook is a State-approved nonpublic school (R. 43). See 8 NYCRR §§ 200.1(d), 2007. Although a particular private school may meet the Commissioner’s criteria for approved to provide special education programs and services to student with disabilities, it is the individualized needs of a student with a disability that will ultimately “determine which of such services shall be rendered” by an approved private provider. See N.Y. Educ. Law § 4402(2)(a). Thus, while Springbrook may be approved to provide special education and related services to students with disabilities, the DOE may only be directed to contract with Springbrook here if such direction would be consistent with the student’s individualized needs. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-048 at 8 (SRO June 30, 2011).
Upon review and due consideration of the hearing record, I find that the record does not support a finding that Springbrook is an appropriate educational placement for the student.
The evidence entered into the hearing record demonstrates that the proposed change in the student’s educational placement from Woods Services to Springbrook was impermissibly predetermined. Cf. T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). Since the 2003/04 school year, the student has attended an 8:1+1 special class program at Woods Services, a State-approved nonpublic school in Pennsylvania (R. 43, 49, 68-69; Exs. SD-1 at 1, SD-2 at 1, P-A at 1-2, P-C at 4). At a meeting held on May 18, 2012, the CSE recommended that the student continue to receive the majority of her instruction in an special class at a State-approved nonpublic school (Ex. P-D at 7). On May 25, 2012, after receiving a letter of the student’s acceptance to Springbrook (located in Oneonta), a CBST case manager directed the CSE to reconvene and revise the student’s IEP (Ex. IHO-II). On June 14, 2012 the CSE reconvened, as directed by the CBST, and without any stated rationale or additional evaluation of the student’s educational needs, revised the student’s recommended program to a 6:1+1 special class program (R. 43, 53, 62; Ex. SD-1 at 8). The June 14, 2012 CSE which enacted the program change lacked a special education teacher of the student as required by law (R. 53). See 20 U.S.C. § 1414(d)(1)(B)(ii)-(iii); 34 C.F.R. § 300.321(a)(2)-(3); 8 NYCRR § 200.3(a)(1)(ii)-(iii). Mr. , a social worker who chaired both meetings, was “puzzled” as to why the CSE changed its recommended special class ratio for the student, but did not doubt it was done to fit placement (R. 40, 58; Exs. Exs. SD-1 at 8, P-D at 7). Mr. stated that the only reason for the change in the student’s recommended educational placement from was to satisfy a perceived State requirement that disabled students educated at out-of-state facilities be move to in-state ones (R. 5556).[6] Mr. acknowledged that is further away from the student’s Brooklyn home than is
(R. 51)
The evidence entered into the hearing record also demonstrates that a placement of the student at would be inconsistent with her individualized educational needs. According to Mr. , an Assistant Director of Education and IEP Coordinator, operates two (2) programs this academic year (2012/13): the Generating Enrichment and Motivational Skills (“GEMS”) program and the program. Mr. described GEMS as a general special education program with a residential component which accepts students with a variety of educational disabilities. The GEMS program offers disabled students instruction in self-contained special classes of (R. 91-92, 104). The , in contrast, is an applied behavioral analysis program for students on the autistic spectrum (R. 101-102, 105). While Mr. thought the student had been recommended for the GEMS program, Mr. stated that she had been recommended for the (R. 47, 108). The May 25, 2012 acceptance letter from is silent as to which program the student had been admitted, perhaps because the student had not been screened by the school since 2011 (R. 99-100; Ex. IHO-II at 2). The for students on the is clearly incompatible with the student’s identified educational needs (R. 78, 112-113; Exs. SD-1 at 1-3, SD-2, SD-3, SD-4, P-D at 2-4). The GEMS program is also inappropriate because it lacks special classes at the ratios called for in either the May 18, 2012 or June 14, 2012 IEPs and does not have any one-to-one crisis paraprofessionals on staff as called for in both of the student’s IEPs (R. 71, 77, 79-80, 90, 102, 106; Exs. SD-1 at 8-9, P-D at 7-8).
C. Parent’s Requested Relief - Continued Placement at Woods Services
As the parents did not unilaterally place the student at Woods Services, the traditional Burlington/Carter tuition reimbursement analysis does not apply to this case. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Department of Educ., 471 U.S. 359 (1985).[7] A student is considered to have been unilaterally placed when his or her parents change the student’s placement “during the pendency of review proceedings, without the consent of state or local school officials.” See Burlington, 471 U.S. at 373-74; see also 34 C.F.R. § 300.148(c).
The hearing record indicates that DOE initially placed the student at for the 2003/04 school and that she has remained in that educational placement without interruption (R. 43, 49, 68; Exs. SD-1 at 1, SD-2 at 1, P-A at 1-2, P-C at 4). As this public placement remained the student’s last agreed upon placement at the time of my September 11, 2012 Interim Order on Pendency and the student was initially placed in the approved nonpublic school setting by the DOE, I find that the parents’ continuation of the student’s placement at did not constitute a unilateral placement (Exs. IHO-I, SD-1 at 1, SD-2 at 1, P-A at 1-2, P-C at 4). See Application of the New York City Dep’t of Educ., Appeal No. 12-062 at 13 (SRO June 18, 2012). Rather, was the student’s mutually agreed upon placement at the time this proceeding was commenced. See Application of a Child with a Disability (Baldwin Union Free Sch. Dist.), Appeal No. 96-48 (SRO Nov. 1, 1996).
As the June 14, 2013 CSE failed to develop an appropriate IEP and the placement of the student at was not a unilateral one on the part of the parents, the DOE must reconvene the CSE to develop and IEP in conformity with the IDEA that meets the student’s need prior to modifying the student’s educational placement. Although the DOE now argues that is no longer the student’s LRE (because it is out-of-state), there is no evidence contained in the hearing record showing how the CSE considered the matter at the time of the June 14, 2012 CSE meeting and I find that the DOE has not established that Woods Services was otherwise inappropriate to address the student’s needs (Exs. SD-1, P-D).
In any event, based on the credible testimony offered by Dr. , the student’s , and the parent, and documented reports of the student’s academic progress in the private setting, I find that was an appropriate placement for the student because it provided her with specially designed, individualized instruction to meet her unique educational needs, supported by such services as were necessary to permit her to benefit from instruction (R. 74-75; Exs. SD-2 at 2, SD-3, P-E, P-F, P-G). See Gagliardo, 489 F.3d at 115; Walczak, 142 F.3d at 129; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
At , the student receives instruction in special class setting in functional academics and life skills, including vocational skill development. She receives art, music, heal and adapted physical educational throughout the week. (R.69; Exs. SD-1 at 1; P-D at 2). As noted in the updated social history taken on May 18, 2012:
[A] , [the student] made a complete turn around, specifically in areas of personality, behavior and socialization. During the period of time [the student] has been away, she has been and continues to be provided with very structured, clearly delineated routines and tasks throughout the day but also she get support from all staff as well as
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT
(1) the student shall remain at the program, at public expense, for the duration of the 2012/13 school year; and
(2) the DOE shall pay all education and maintenance tuition charges for the student’s residential placement at beginning July 1, 2012 through June 30, 2013. Dated: April 5, 2013
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 AUGUST 16, 2012
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 7/2/12, 4 pgs.
B. DOE Due Process Response, 7/11/12, 3 pgs.
C. Findings of Fact & Decision, IHO , 7/19/12, 13 pgs.
D. Final Notice of Recommendation (FNR), 6/14/12 & Individualized Education
Program (IEP), 5/18/12, 13 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 6, 2013
PARENT
E. Individual Support Plan (ISP), 12/5/12, 30 pgs.
F. Individual Support Plan (ISP) Revision, 1/7/13, 2 pgs.
G. Support Plan, 12/13/12, 17 pgs.
H. Medical Plan, 12/5/12, 3 pgs.
I. Dental Hygiene Plan, 12/5/12, 1 pg.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 6/14/12, 15 pgs.
2. Social History Update, 5/18/12, 3 pgs.
3. Academic Program Assessment, 10/19/11, 15 pgs.
4. Classroom Observation, 1/24/12, 1 pg.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 9/11/12, 9 pgs.
II. Memorandum to , 5/25/12, 1 pg.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
III. Confirmation of Extension, 8/16/12, 1 pg.
IV. Confirmation of Extension, 10/22/12, 1 pg.
V. Confirmation of Extension, 11/13/12, 1 pg.
VI. Confirmation of Extension, 12/27/12, 1 pg.
VII. Confirmation of Extension, 1/21/13, 1 pg.
VIII. Confirmation of Extension, 3/7/13, 1 pg.
IX. Confirmation of Extension, 3/18/13, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow for adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate to present their available witnesses on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. See 8 NYCRR § 200.5(j)(5)(ii). Accordingly, requests for extensions of the case compliance date were granted (R. 18-19; 121-122; Exs. IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX).
[3] Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which causes such sever educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR § 200.1(zz)(8).
[4] 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.
[5] OSEP is the agency charged with the principal responsibility for administering the IDEA. See 20 U.S.C. § 1402(a). Substantial deference must be given to a federal agency’s interpretation of its own regulations; the interpretation must be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see also Honig, 484 U.S. at 325 n.8.
[6] Although no evidence was offered by the DOE to substantiate its perception that the New York State Education Department (“NYSED”) desired that disabled students educated in out-of-state facilities be moved to in-state ones, I note that the NYSED issued a special education field advisory in March of 2012 entitled Placements of Students with Disabilities in Approved Out-of-State Residential Schools and Emergency Interim Placements. That memorandum, provided updated procedures, forms and policy from guidance previously issued in April 2011, related to a school district’s responsibility to submit timely and complete applications, as prescribed in section 200.6(j) of the Regulations of the Commissioner of Education, for approval of State reimbursement of tuition costs for placements of students with disabilities in out-of-state approved residential programs. Reapplications to NYSED for a student who was then- currently placed in an out-of-state approved private residential school, was required to include annual documentation that there were no appropriate public or approved private facilities for instruction available within this State.
[7] 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 remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).