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 14, 2013
March 7, 2013
Actual Record Closed Date: April 10, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013
ESQ., Attorney — Student
Parents
Teacher — Student
District Representative, CSE — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON MARCH 7, 2013
ESQ., Attorney — Student
Parents
Teacher (via telephone) — Student
Teacher (via telephone) — Student
Teacher (via telephone) — Student
District Representative, CSE — 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 advocates for the student and the parent in a due process complaint notice dated August 15, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent for costs associated with the student’s unilateral private placement at the ) for the 2012/13 school year (Ex. P-B).[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
After the parent filed his August 15, 2012 impartial hearing request, the DOE denied each and every allegation contained in the parent’s complaint in a due process response dated August 20, 2012 (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5). I was appointed by the DOE to hear this matter on September 7, 2012, following the recusal of another hearing officer. A pre-hearing conference with the parties was held on November 16, 2012 to clarify the issues and set dates for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). Thereafter, hearings in this matter were held on January 14, 2013 and March 7, 2013.[2] In an Interim Order on Pendency dated March 6, 2013, I directed the DOE to maintain the student at at public expense, effective September 6, 2012, through the conclusion of these proceedings (Exs. IHO-I at 7, P-A). 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 August 15, 2012 hearing request, the student was ) year old, student preparing to (Exs. P-B at 2, P-J).[3] The Commissioner of Education has not approved as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Ex. P-B). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
The student underwent a in January 2004, a evaluation in January 2005, a evaluation in January 2007 and a in June 2009. Those evaluations indicated that the student struggled with verbal comprehension, phonemic awareness and language processing (Ex. SD-3 at 1).
During the 2011/12 school year, the student attended the tenth grade . At that time, both the student’s father and his teacher at York, Ms. described the student as intelligent and diligent in his work, who struggled with reading, writing and spelling. The student’s father expressed a concern at that time that the student reading and writing skills as he prepared for college entrance exams and college-level work. Ms. described the student at that time as managing with functioning” (Ex. SD-3 at 1).
In January of 2012, the student was referred by his parents for a private in order to update his current academic functioning. The Wechsler Intelligence Scale for Children, Fourth Edition (“WISC-IV”) was administered to assess the student’s overall level of intellectual functioning. The student’s Full Scale IQ score of percentile) demonstrated that his overall intellectual functioning was in range compared to other student’s his age. However, given the significant discrepancy between the student’s Verbal Comprehension composite score percentile) and his Processing Speed composite score ( percentile), the evaluator urged caution in on the student’s Full Scale IQ score when making educational decisions (Ex. SD-3 at 1, 3, 7).
The student’s performance on the Woodcock-Johnson Tests of Achievement, Third Edition, (“W-J III”) indicated inconsistent academic skills. His overall achievement level was assessed to be and within the of functioning (102 standard score, percentile). His overall reading skills were found to be at the percentile ( standard score), his overall math skills at the percentile ( standard score) and his overall writing skills at the percentile ( standard score). Within these composites, significant weaknesses were noted on subtests measuring decoding (word attack - percentile), reading comprehension (passage comprehension - rd percentile), spelling ( nd percentile) and handwriting ( rd percentile) when compared to other peers in his grade level. The discrepancy between the student’s verbal scores on the WISC-IV ( th percentile) and his lower reading and writing scores on the WJ-III ( rd percentile, h percentile) was deemed indicative of a learning disorder related to reading and writing (Ex. SD-3 at 4-5, 8).
In a letter to the CSE dated February 22, 2012, the student’s father requested a meeting to develop an IEP for the student for the 2012/13 school year. The student’s father advised the CSE that he was going to sign an enrollment contract for the 2012/13 school year, and make a tuition deposit, to reserve a spot for the student should the CSE fail to offer the student an appropriate program (Ex. P-D).
At a meeting held on April 2, 2012, the CSE developed an IEP for the student for the 2012/13 school year. The CSE recommended that the student receive the majority of his instruction in general education classes, supported by special education teacher support services (“SETSS”) delivered six (6) times per week in a group setting (Exs. SD-
4 at 7, SD-5 at 1).
On May 18, 2012 the student’s father signed a tuition contract with York for the student’s enrollment at that school for the 2012/13 school year (Ex. P-F). In a letter to the CSE dated June 7, 2013, the student’s father advised the CSE that he had not yet received a placement offer for this son for the 2012/13 school year. The parent reiterated that he had reserved a spot for the student for the 2012/13 school year should the DOE fail to offer the student an appropriate program and/or placement (Ex. P-G).
On July 17, 2012, the DOE mailed a Final Notice of Recommendation (“FNR”) to the student’s father advising him that the student’s IEP would be implemented at the Bronx School of Law and Finance (Ex. SD-6).
In a letter to the CSE dated September 25, 2012, the student’s father advised the CSE that on September 20, 2012, he had visited the proposed program at . The parent stated that he was rejecting the CSE’s proposed program because, among other things, it lacked SETSS services as called for the in the student’s IEP. The parent indicating that he had unilaterally enrolled the the 2012/13 school year) and would be seeking tuition reimbursement from the DOE for this private placement (Exs. P-I, SD-4 at 7).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for tuition reimbursement for the student’s unilateral placement should be denied. The scope of the hearing should not include an allegation that the proposed placement cannot implement the student’s IEP because that allegation was not plead in the parent’s due process complaint. The CSE’s recommended program offered the student a free appropriate public education in the least restrictive environment. was an inappropriate placement for the student which failed to meet his special education needs. The relevant equities also do not support the parent’s claim. (R. 30-31; Ex. IHOVIII).
B. The Parents
The DOE should be ordered to reimburse the parent for the student’s tuition to for the 2012/13 school year. The DOE failed to offer the student a free appropriate public education. The IEP developed by the DOE was procedurally and substantively inadequate. appropriately addressed the student’s . The relevant equities also support reimbursement to the parent of the student’s tuition to (R. 31-33; Ex. IHO-IX).
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)(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. sup. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v New York City Dep’t of Educ., 646 F. sup. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34F 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).
For the reasons set forth below, I find that the CSE’s recommended program for the student was inappropriate, was an appropriate placement for the student and that there are no equitable grounds for which a reimbursement award should be reduced or precluded.
B. Scope of Impartial Hearing
The DOE argues that the scope of this hearing should exclude any consideration of whether it could implement recommended educational programming for the student at its proposed placement (Ex. IHO-VIII at 2-3). State regulations provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process compliant notice unless the other party agrees. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(i)(7)(b); R.B. v. Department of Educ. of City of New York, 2011 WL 437694, at *6*7 (S.D.N.Y. Sept. 16, 2011); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *8 (S.D.N.Y. Aug. 27, 2010).
I find that the DOE’s argument to exclude placement considerations from the scope of the hearing is without merit. The hearing record in this case demonstrates that the parent gave the DOE adequate written notice of his concern over whether recommended SETSS could be implemented at the In a letter dated February 22, 2012, the parent advised the CSE of his concern about securing an appropriate placement for the student. The parent requested that a member of the CSE Placement Office attend the CSE’s annual review meeting for the student (Ex. P-D). The CSE did not respond to the parent’s February 22, 2012 letter. No representative from the DOE’s placement office was made available to the parent at the April 2, 2012 annual review meeting (Ex. SD-4 at 12-14). In a letter dated June 7, 2012, the parent advised the CSE that he had not yet received a placement offer, although the student’s annual review meeting had been held in April. The parent requested that the CSE send him its placement recommendation as soon as possible (Ex. P-G). The CSE did not respond to the parent’s June 7, 2012 letter. The CSE also failed to provide the parent and student with any prior written notice of its program and placement recommendations for the student for the 2012/13 school year (Ex. P-B at 5). See 8 NYCRR § 200.5(a).
In an FNR dated July 17, 2012, the DOE advised the parent that the student’s IEP would be implemented at the and advised the parent of his right to visit the proposed placement (R. 112; Ex. SD-6). Given that the student was only recommended to receive ten (10) month special education programming, however, the parent could not visit the proposed public program and placement until the 2012/13 school year commenced in September 2012 (R. 116; Ex. P-I). On August 15, 2012, the parent filed the DOE a timely due process complaint which alleged, inter alia, “the CSE failed to offer an appropriate placement” (Ex. P-B at 5). In its August 20, 2012 due process response, the DOE asserted that the “is reasonably calculated to enable the child to obtain meaningful educational benefits” (Ex. SD-2 at 3).
The parent ultimately visited the on September 20, 2012. In a letter dated September 25, 2012, the parent advised the CSE that he was rejected the proposed program and placement because, among other things, he has been advised by an assistant principal at the that SETSS was unavailable at the school and that the student would have to receive instruction in an integrated co-teaching (“ICT”) class, which is a more restrictive educational setting than SETSS (R. 116-117; Ex. P-I). The CSE failed to respond to the parent’s September 25, 2012 letter.
C. Procedural Compliance
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.
1. CSE Membership - Special/Regular Education Teachers
The parent alleges that the April 2, 2012 CSE was not properly constituted because it lacked a special education teacher of the child and a regular education teacher of the child (Ex. P-B at 4).
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 ; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
The hearing record reflects that Ms. , one of the student’s special education teachers at York during the 2011/12 school year, participated in the April 2, 2012 CSE meeting by telephone (Exs. SD-4 at 13-14, SD-5 at 1). When conducting a CSE meeting, the parent and district representative may agree to use alternative means of meeting participation, such as video conferences and conference calls. See 34 C.F.R. § 300.328; 8 NYCRR § 200.4(d)(4)(i)(d). There is no indication in the hearing record that the parent objected to any CSE member's telephonic participation at the time of the meeting (Exs. SD-4, SD-5).
Federal and State law also provides that the regular education teacher of the child “shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplemental aids and services, program modification, and support for school personnel.” 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d).
Ms. , a school who participated in the April 2, 2012 CSE meeting, acknowledged that was no general education teacher at the meeting and she was unaware if one had been invited to the meeting (R. 63). Given the CSE’s recommendation that the student was to receive the majority of his instruction in a general education setting, I find that a regular education teacher of the student was required at the April 2, 2012 CSE meeting, cf. 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010), and that the absence of a general education teacher from the meeting significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, 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).
D. Substantive Appropriateness of Proposed Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
I find that the DOE’s recommended program would not have provided the student with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction. According to the January 2012 private , which the April 2, 2012 CSE adopted, the student demonstrated “significant weaknesses . . . in phonemic awareness, reading comprehension, spelling, grammar and handwriting.” To address these needs, the evaluator recommended an “intensive reading and writing program” with “specific remediation with a reading specialist to focus on phonemic awareness and reading comprehension” and “specific remediation with a writing specialist to address his difficulty with spelling, grammar rules, and essay construction (organizing ideas, discerning primary information from secondary information)” (R. 44; Exs. SD-3 at 5-6, SD-4 at 1-3, SD-5). Ms. ’s testimony failed to establish that the recommended SETSS to be offered one (1) period daily for skill development would provide the student with intensive, specific remediation in reading and writing as recommended in the most recent of the student (R. 45-46, 62-63; Ex. SD-3 at 5-6).
E. DOE Recommended Placement - Bronx School of Law and Finance
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]
Once a parent consents to a school district’s provision of special education services, however, such services must be provided by the district in conformity with the student’s IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320; T.Y. v. New York City Dep’t of Educ., 584 F.3d at 412, 420 (2d Cir. 2009); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 668-669 (S.D.N.Y. 2011). Here, the unrebutted evidence entered into the hearing record demonstrates that the DOE deviated from substantial or significant provisions of the student's IEP in a material way and thereby precluded the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-07; A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. March 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005). Upon visiting the Bronx School of Law and Finance on September 20, 2012, the parent was informed by an assistant principal that SETSS was unavailable at the school and that the student would have to be placed in an ICT class. The parent promptly shared this information with the CSE in a letter dated September 25, 2012 (R. 116-117; Ex. P-I). The CSE never responded to the parent’s September 25, 2012 letter and the DOE failed to rebut the parent’s report with any evidence demonstrating that SETSS would have been available to the student upon enrollment.
F. Appropriateness of Program
Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet 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. , Mr. Ms. and Mr. , I find that is an appropriate placement for the student because it provides him with specifically designed, individualized instruction to meet his unique educational needs.
Mr. the former Chairperson of ’s History Department and a former teacher (who is certified by New York State to teach special education in grades kindergarten (K) through twelve (12)), has been employed by for fifteen (15) years (R. 198). keeps its class sizes small in high school with approximately fifteen (15) students in each class (R. 62 employs a tracking system which groups students based on ability (R. 200). also uses a computer program called which posts homework assignments, test scores, teacher handouts and teacher comments on-line (R. 205). Mr. testified that 40%-60% of s students have some form (R. 199).
Mr. also testified that one-third of ’s students are enrolled in its program (R. 200-201). teachers are certified special education teachers (R. 201). The program meets twice daily, at the beginning and end of the day, in group sessions and twice weekly for one-to-one sessions with each child for one period (R. 201-202). teachers at are fully integrated in the school. They teach subject classes and also pushin to cooperatively teach with lower track classes on a regular basis (R. 204). Start teachers also train classroom teachers on teaching techniques for instruction of students
(R. 204).
Mr. testified at the hearing that he is the student’s Fundamentals of Writing teacher and is certified by New York State to teach literacy in grades one (1) through twelve (12) (R. 167). He (16) students in his class this year, all of whom have learning disabilities (R. 168). To address the student’s difficulties with written expression, Mr. uses the writing system which is highly scaffolded and breaks down the writing process into smaller chunks (R. 179-179). The system includes brainstorming ideas and using outlines and graphic organizers (R. 178, 181). To address the student’s reading comprehension deficit, Mr. uses reciprocal reading strategies, such as predicting, questioning, clarifying and summarizing, to make the student an active reader; practices annotation skills; and uses multi-sensory instruction resources, like a Smart Board (R. 170-171, 174, 176-177). Mr. stated that he communicates with the student’s teacher on a daily basis (R. 183).
Mr. , the student’s U.S. History teacher, testified at the hearing that he has sixteen
(16) students in this class this year, half of whom have (R. 142-143). Mr. presents reading material to all the students in chunked, smaller passages. To address the student’s reading comprehension difficulties, Mr. uses a “term binder” in which the student collects historical terms and cross-references those terms to page numbers in his U.S. History text, posts questions on Ed-Line, uses repetition and administers daily quizzes (R. 145, 151).
Ms. , the student’s teacher, testified at the hearing that she has a dual Master’s Degree in general education and special education and is certified by New York State to teach special education in grades one (1) through six (6) (R. 72-73). Ms. stated that she has only five (5) students in her class this year (R. 73). To address the student’s difficulties in written expression, Ms. Writing Skills Program which provides the student with a checklist for editing and revising and a graphic organizer which lays information out in a linear fashion (R. 76-77, 81). To address the student’s reading comprehension needs, Ms. provides the student with support and uses audio books which follow the texts read by the student in class (R. 83-84, 98).
Ample evidence was also offered into the hearing record demonstrating that the student made significant progress as a result of the intensive and specific remediation he received there (R. 89, 123, 155-156, 186-187; Exs. SD-3 at 6, P-J).
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 June 7, 2012, the parent gave the DOE adequate written notice of his intent to make a unilateral placement of the student at public expense for the 2012/13 school year should the DOE fail to offer an appropriate public program and placement to the student (Ex. P-G). 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 parent was uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of tuition is unreasonable, see Carter, 510 U.S. at 16 (Ex. IHO-VIII at 6).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
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 2012/13 school year Dated: April 29, 2013
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS: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 JANUARY 14, 2013
PARENT
A. Findings of Fact & Decision, IHO Lana Flame, 1/18/12, 18 pgs.
B. Impartial Hearing Request/Due Process Complaint Notice, 8/15/13, 8 pgs.
C. [Withdrawn]
D. Letter to from parent w/ proof of mailing, 2/22/12, 2 pgs.
E. [Withdrawn]
F. 2012/13 Tuition Contract,[5] pgs., 5/18/12
G. Letter to from parent w/ proof of mailing, 6/7/12, 2 pgs.
H. [Withdrawn]
I. Letter to from parent w/ proof of mailing, 9/25/12, 3 pgs.
J. First Quarter Report, 11/6/12, 1 pg.
DEPARTMENT OF EDUCATION
1. [Withdrawn]
2. Due Process Response, 8/20/12, 4 pgs.
3. Update, 1/7/12, 8 pgs.
4. Individualized Education Program (IEP), 4/2/12, 14 pgs.
6. Final Notice of Recommendation (FNR), 7/17/12, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 7, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 3/6/13, 9 pgs.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II. Confirmation of Extension, 10/28/12, 1 pg.
III. Confirmation of Extension, 11/16/12, 1 pg.
IV. Confirmation of Extension, 12/27/12, 1 pg.
V. Confirmation of Extension, 1/14/13, 1 pg.
VI. Confirmation of Extension, 2/21/13, 1 pg.
VII. Confirmation of Extension, 3/8/13, 1 pg.
VIII. DOE Closing Statement, 4/8/13, 7 pgs.
IX. Parent’s Post-Hearing Brief, 4/9/13, 23 pgs.
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 parent’s 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 parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII).
[3] Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in 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] 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.
[5] CSE Review Rationale, 4/2/12, 3 pgs.