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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: November 15, 2012
January 8, 2013
March 21, 2013
July 3, 2013
Actual Record Closed Date: July 31, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15,
2012
Advocate — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2013
Advocate — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2013
Advocate — Student
District Representative — DOE
IEP Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2013
Advocate — Student
Advocate (via telephone) — Student
Parents
Director (via telephone) — Student
District Representative — DOE
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 originally requested by the advocates for the student and the parents in a due process complaint notice dated August 14, 2012, and was later amended on January 29, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents and/or directly pay for costs associated with the student’s unilateral private placement at for the 2011/12 school year (Exs. P-A, P-L).[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 appeal that decision 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).
PROCEDURAL HISTORY
On September 19, 2012, I was appointed by the DOE to serve as the IHO in this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on September 27, 2012 to clarify the issues and set dates for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were thereafter held on:
November 15, 2012, January 8, 2013, March 21, 2013, and July 3, 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).
FACTUAL BACKGROUND
At the time of the August 14, 2012 hearing request, the student was eight (8) years old and had recently completed his second grade (Ex. P-A). For the 2011/12 school year, the student attended the second grade at the in Brooklyn (Exs. P-A, P-F, P-G, P-H, P-I, P-J, P-L). 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 current eligibility for special education and related services as a student with a learning disability is not in dispute in this hearing (R. 56, 103; Exs. P-A, P-D at 1, 13, P-L). See 34 C.F.R. § 300.8(c)(6); 8 NYCRR § 200.1(zz)(6).[3]
In a letter dated July 7, 2011, the advocates for the student and the parents requested that the CSE convene to develop and IEP for the student for the 2011/12 school year (Ex. P-C). On August 19, 2011, the CSE convened, as requested, to develop and IEP for the student for the 2011/12 school year. The CSE noted that on the WISC-IV, the student had earned a full , placing him in the for the student. The student displayed visually presented material and then respond to it with a paper/pencil task. The student’s performance on the Bender Gestalt II also suggested that he had a weakness in graphomotor skills. On the Woodcock-Johnson III, the student’s reading comprehension skills measured in the (i.e., ) and was . His skills in math computation and reasoning were also areas of weakness falling the limited-to-average ranges. The student’s writing, at that time, line. The student also was noted and motivation (Ex. P-D at 1-2).
For the 2011/12 school year, the student’s second grade, the CSE recommended that the student receive the majority of his instruction in an integrated co-taught (“ICT”) class along with individual occupational therapy. The CSE recommended that, while in class, the , . The CSE also recommended that the student receive testing accommodations of extended time and separate location/room (Ex. P-D at 1-2, 8-9, 13).
for extensions of the case compliance date were granted (R. 5-6, 25-26, 76-77; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX).
On August 22, 2011, the advocates of the student and the parents advised the CSE of the parents’ rejection of the proposed public program and of their intent to make a unilateral placement of the student at public expense for the 2011/12 school year (Ex. PF).
In a Final Notice of Recommendation dated August 29, 2011, the DOE advised the parents that the student’s proposed public program would be implemented at . In a handwritten note dated October 5, 2011, the student’s mother indicated that she had visited the proposed placement and had determined that it was inappropriate for the student given its size (approximately thirty (30) students) (Ex. P-E).
POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. was an inappropriate placement for the student. The relevant equities mitigate against a reimbursement/direct payment award.
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s tuition to for the 2011/12 school year. The DOE failed to offer the student a free appropriate public education. appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s private school tuition (Exs. P-A, P-L).[4]
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.[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).
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).
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. Composition of August 2011 CSE
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 23, 2012 CSE was not properly constituted (Ex. P-A at 1).
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 the August 2011 meeting was comprised of all of its required members. See 8 NYCRR § 200.3(a). In attendance at the August 19, 2011 meeting were Mr. , the special education teacher member and school district representative; Mr. , a regular education teacher member; the student’s mother; Mr. , an additional parent member; and Ms. , the student and parents’ advocate (R. 54-56; Ex. SD-1 at 16).
Alternatively, while the parents assert that the DOE failed to include personnel who were presently providing special education services to the student as a member of his IEP team, the hearing record reflects that the student attended during the 2010/11 school year (his first grade) and that the CSE possessed adequate information of the student’s functioning in his private program during that school year upon which to premise its recommendations for the 2011/12 school year (Exs. SD-2 at 3-4, P-A at 2, P-C, P-L at 2).
C. Adequacy of IEP Goals
The parents allege that the annual goals developed for the student did not adequately address his particular needs (Exs. P-A at 2, P-L 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 2011/12 school year established annual educational goals which were reasonably related to his educational deficits. The August 2011 CSE noted that the and letter word identification, and comprehension, math computation, attention and motivation, (Ex. P-D at 1-2). The student’s IEP for the 2011/12 school year included annual goals in reading, writing, math and fine motor skills which were consistent with in the student’s evaluations and described what he could reasonably be expected to accomplish within a twelve month period. 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 (R. 57-59, 64; Ex. P-D at 4-7). 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. Size of Proposed Class
The parent alleges that the assigned ICT class would have been too large for the student to function appropriately (R. 70; Exs. P-A at 2, P-D at 14, P-E, P-L at 2).
In this case, a meaningful analysis of the parents’ claims with regard to the size of the proposed ICT class would require me to determine what might have happened had the DOE been required to implement the student’s IEP. While parents are not required to first try out the school district’s proposed program before seeking tuition reimbursement, see Forest Grove, 129 S. Ct. at 2496, I note that neither the IDEA nor State regulations require a school district to establish the manner in which a student will be grouped on his or her IEP, as it would be neither practical nor appropriate, see Application of the Dep’t of Educ. of the City of New York, Appeal No. 11-040 at 22 (SRO June 8, 2011). The Second Circuit has also determined that, unlike an IEP, school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194. The IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, but they do not permit parents to direct through veto a school district’s efforts to implement each student’s IEP. See T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010). A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being education under the plan, or would be, but for the delay in implementation. See E.H. v. Board of Educ., 2008 WL 3930028, at *11 (N.D.N.Y. Aug. 21, 2008), aff’d, 2009 WL336627 (2d Cir. Oct. 16, 2009). The sufficiency of the DOE’s offered program in this case is determined on the basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 2011 WL 924895, at *10 (S.D.N.Y. Mar. 15, 2011). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to the failure to implement it. See id.
Thus, in this case, the issue of the size of the proposed ICT class is speculative because the parents did not accept the services recommended by the CSE in the IEP or enroll the student in the public school (Exs. P-A, P-E, P-F, P-I, P-L ). See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-22 (SRO June 20, 2011).
E. 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.
I find that the DOE has failed to adequately demonstrate that the CSE's recommended placement of the student in an ICT classroom would have provided the student with sufficient support and structure to appropriately
F. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012 school year, I turn to the appropriateness of the parents’ private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the credible testimony offered by Ms. Director of the and the student’s mother, I find that the was an appropriate placement for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs.
The is designed as a self-contained class for all subjects. There were approximately eight (8) classes operating during the 2011/12 school year with no more than ten (10) students per class. Students in the program typically had average-to-above average IQs, but functioned below grade level academically due to learning disabilities. Students were mainstreamed with non-disabled for activities such as gym and lunch, and, where appropriate, were mainstreamed for academic subjects as well. Students at the received instruction in a common core curriculum from a certified teacher and assistant teacher (R. 88-90, 92-93; Exs. P-B, P-H).
During the 2011/12 school year, the student received multisensory instruction from Ms. a certified special education teacher, and an assistant teacher (R. 91, 93). There were ten (10) student in Ms. class, eight (8) of whom were boys. Students in the class ranged in age from seven (7) to eight (8) years old (R. 100). In Ms. s class, the student received whole group instruction when new concepts were introduced and one-toone instruction, at least three (3) times per week, for reading decoding and fluency instruction using an (R. 92, 97, 103-104, 107). Given Ms. instruction, the student was able to progress one grade level on DRA assessments of his reading functioning (R. 98, 101, 115). The student also received mandate while attending during the 2011/12 school year (R. 99).
G. Relevant Equities
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
In a letter dated August 22, 2011, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the Chehebar Academy at public expense for the 2011/12 school year (Ex. P-F). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no contention or evidence indicating that the student’s parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to was unreasonable (Exs. P-I, P-J), see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2011/12 school year is GRANTED; and
(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parents $23,500.00 for tuition costs they paid to enroll the student during the 2011/12 school year. Dated: August 7, 2013
______________________
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS;mv
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 NOVEMBER 15, 2013
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 8/14/12, 4 pgs.
B. The , Mission Statement, undated, 2 pgs.
C. Letter to CSE from , 7/7/11, 2 pgs.
D. Individualized Education Program (IEP), 8/19/11, 16 pgs.
E. Final Notice of Recommendation, 8/29/11, 2 pgs.
F. Letter to CSE from (10 day notice), 8/22/11, 2 pgs.
G. , , Class Schedule, 2011/12, 1 pg.
H. , Class Profile, 2011/12, 1 pg.
I. , Enrollment Contract, 2011/12, 1 pg.
J. The , Affidavit of Payment, 2011/12,[1] pg.
K. Proof-of-Payment, 2011/12,[2] pgs.
DEPARTMENT OF EDUCATION
3. [Withdrawn]
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 8, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 21, 2013
PARENT
L. Amended Impartial Hearing Request/Due Process Complaint Notice, 1/29/13, 3
pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 3, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 9/27/13, 1 pg.
II. Confirmation of Extension, 11/15/12, 1 pg.
III. Confirmation of Extension, 12/31/12, 1 pg.
IV. Confirmation of Extension, 1/31/13, 1 pg.
V. Confirmation of Extension, 4/8/13, 1 pg.
VI. Confirmation of Extension, 5/6/13, 1 pg.
VII. Confirmation of Extension, 6/6/13, 1 pg.
VIII. Confirmation of Extension, 6/11/13, 1 pg.
IX. Confirmation of Extension, 7/30/13, 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 the parties 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. Accordingly, requests
[3] Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, which manifests itself as an imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).
[4] In their January 29, 2013 amended due process complaint notice, the parents withdrew their claim for compensatory occupational therapy services (Exs. P-A at 3, P-L at 3).
[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.
[1] [Withdrawn]
[2] Occupational Therapy Evaluation, 7/8/11, 6 pgs.