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FINDINGS OF F ACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 21, 2012
February 12, 2013
Actual Record Closed Date: March 15, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2012
Parent Advocate — Student
Parents
Principal Upper School (via telephone) — Student
DOE Representative, CSE — DOE
Teacher (via telephone) — DOE
Unit Coordinator (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON FEBRUARY 12, 2013
Parent Advocate — Student
Parents
School Administrator, — Student
DR., 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 advocate for the student and the parents in a due process complaint notice dated November 9, 2011. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent and/or directly pay for costs associated with the student’s unilateral private placement at for the 2011/12 school year (Ex. P-A at 2).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
I was appointed by the DOE to hear this matter on February 24, 2012. In a letter dated March 10, 2012, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I). Hearings in this matter were held on May 21, 2012 and February 12, 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 February 22, 2012 hearing request, the student was twenty (20) years old and educationally classified as having an intellectual disability (R. 22; Exs. SD1 at 1, SD-2, SD-4 at 1).[3] For the 2011/12 school year, the student attended an ungraded program at the in Brooklyn, New York (Exs. SD-3 at 2, P-C, P-E, P-H, P-I). The Commissioner of Education has not approved IVDU as a school with which public school districts may contract to instruct students with disabilities (Ex. P-E). 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-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
Within an April 2010 educational evaluation, it was noted that the student appears to be functioning in the . On the Wechsler Individual Achievement Test - Second Edition (“WIAT-II”), the student scored (or grade equivalents of on all tests of achievement administered. From these scores, the evaluator determined that the student had (Ex. SD-3 at 2-3).
At a meeting held on May 3, 2011, the CSE developed an IEP for the student for the 2011/12 school year. The CSE recommended that the student receive the majority of her instruction in a special class in a specialized (District ) school. The CSE also recommended that the student receive related services of: special education transportation, adaptive physical education, individual and small group ( , small group ( ) ; and small group (R. 22-23; Exs. SD-1 at 1, 15, SD-6).
In a Final Notice of Recommendation (“FNR”) dated June 13, 2011, the DOE identified the Brooklyn as the student’s placement for the 2011/12 school year. In a July 20, 2011 note to the DOE, the student’s parent stated that she was unable to accept or reject the proposed program until she had an opportunity to visit the program in September (Exs. SD-2, P-D).
In a letter dated August 22, 2011, the student’s advocate advised the CSE that the parents intended to make a unilateral placement of the student at the for the 2011/12 school year at public expense (Ex. P-C).
On September 13, 2011, the student’s parents signed a tuition contract for the student’s enrollment at its for the 2011/12 school year (Ex. P-F).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment to IVDU should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment for the 2011/12 school year. The CSE relied on sufficient and adequate evaluative information to develop its IEP for the student. The parents were permitted meaningful participation in the CSE meeting. The IEP goals and objectives are reasonably related to the student’s educational needs. The proposed program was reasonably calculated to confer meaningful educational benefit to the student. was an inappropriate and overly restrictive placement for the student which failed to meet her special education needs. The relevant equities also do not support the parents’ claim.
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s tuition to the for the 2011/12 school year as well as related services and transportation costs. The DOE failed to offer the student a free appropriate public education. The IEP developed by the DOE was procedurally and substantively inadequate. The appropriately addressed the student’s educational needs. The relevant equities also support direct public funding of the student’s tuition to School (Ex. P-A).
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. 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. 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. Adequacy of Evaluations
The parents allege that the CSE’s IEP for the student failed to include any report concerning her instructional level in reading, writing and math (Ex. P-A at 2).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2010/11 school year (Exs. SD-1, SD-6). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). On April 13, 2010, the CSE secured an educational evaluation of the student using the WIAT-II which indicated that the student was in all academic areas (Ex. SD-3 at 3). A classroom observation conducted of the student on November 22, 2010 estimated the student’s functioning in reading and math to be on level (Ex. SD-5 at 2). The CSE also had reports of the student’s progress at the May 3, 2011 meeting and Ms. , the student’s during the 2010/11 school year, participated in the May 3, 2011 CSE meeting (R. 34; Ex. SD-6).
2. Adequacy of IEP Goals
The parents allege that the annual goals developed by the CSE for the student were not specific, measurable or individualized for the student (Ex. P-A 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).
While the CSE’s annual educational goals for the student are flawed in that they lack evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goals during the period beginning with placement and ending with the next scheduled review by the committee (Ex. SD-1 at 6-12), 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 that flaw did not impede the student’s right to a FAPE, significantly impede the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause 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). Given that the CSE had designed the student for alternate assessment, its IEP for the student also contained short-term instructional objectives (Ex. SD-1 at 6-12, 15). See 8 NYCRR § 200.4(d)(2)(iv). Where, as here, recommended short-term objectives “contained sufficiently detailed information regarding ‘the conditions under which each objective was to be performed and the frequency, duration and percentage of accuracy required for measurement of progress’” any deficiencies in the annual goals are remedied (Ex. SD-1 at 6-12). See Tarlowe v. New York City Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); see also M.C. v Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 (S.D.N.Y. Sept. 29, 2008); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 146-147 (S.D.N.Y. 2006).
3. Adequacy of Transition Planning
The parents allege that the transition plan for the student does not include a diploma objective or the student’s name (Ex. P-A at 2). For the reasons stated below, I find that this component of the parents’ claim is without merit.
Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34); see also N.Y. Educ. Law § 4401(9); 34 C.F.R. § 300.43; 8 NYCRR § 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR § 200.4(d)(2)(ix). It must also include the transition services needed to assist the student in reaching those goals. See id.
I find that the May 3, 2011 IEP contained a statement of transition services needed to assist the student in reaching her postsecondary goals. See id. The transition plan indicated that upon aging out of school-age programming, the family intended for the student to participate in a setting where she can do vocational training while she lived at home. To assist the student in reaching that goal, the CSE developed an instructional plan of community integration and independent living skills, including learning various functional/daily living skills such as reading street signs, aisle signs in a supermarket, making her bed, and working in the kitchen (Ex. SD-1 at 16-17).
Alternatively, I find that the absence of a notation in the transition plan that the student would receive an IEP diploma based on her alternate assessment status, see [8] NYCRR § 200.4(d)(2)(vii), did not impede the student’s right to a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits (R. 31-32; Ex. SD-1 at 16-17), see 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2);
4. Class Size/Staffing Ratio of Proposed Program The parents allege that the proposed class size, i.e., , would have been inappropriate for the student because she requires a smaller student-to-teacher ratio in order to learn (Ex. P-A at 2).
In this case, a meaningful analysis of the parents’ claims with regard to the proposed class size 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.
In light of the legal analysis set forth above, the issue of the appropriateness of the size of the proposed class is speculative because the parent did not accept the services recommended by the CSE in the IEP or enroll the student in the public school (Exs. P-A, P-C). 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).
C. 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 her to benefit educationally from that instruction. The DOE failed to meet its evidentiary burden and demonstrate that the student would have received sufficient individualized instruction to meet her significant academic and (Exs. SD-1 at 3-5, SD-5 at 2, SD-6). While Ms. , a special education teacher assigned to the CSE, opined that the special class was appropriate for the student, I do not assign great weight to that opinion as Ms. had never provided instruction to the student (R. 21, 27, 33). Likewise, while Ms. , a Unit Coordinator at the assigned school ( ), stated that the student would receive related services and instruction in functional academics at the proposed school, that information alone was insufficient to demonstrate that the special class and recommended related services were reasonably calculated to meet the student’s unique educational needs (R. 42, 45-46; Ex. SD-1).
D. Appropriateness of the Upper School
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 parent’s 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 her 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. , Principal of the School, 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. 54-83, 105-127; Exs. P-B, P-G, P-I).
E. 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 from the parent’s advocate dated August 22, 2011, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the IVDU Upper School at public expense for the 2011/12 school year (Ex. P-C). 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 School was unreasonable (Exs. SD-1, SD-6, P-F), see Carter, 510 U.S. at 16.
F. Relief
“Where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief.” Mr. & Mrs. A., 769 F. Supp. 2d at 428. Since the parents have selected as the unilateral placement, and their financial status is at issue, the parents carry the burden of production and persuasion with respect to whether they have the financial resources to “front” the costs of the IVDU Upper School and whether they are legally obligated for the student’s tuition payments. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 12-004 at 16 (SRO March 19,
2012).
The parents have established that there was a lack of financial ability to "front" the private school tuition costs for the 2011/12 school year. The parents incurred an obligation to tuition in the amount of $48,000 for the student’s enrollment at during the 2011/12 school year (Ex. P-F). The tuition contract and the credible testimony offered by Mr. , an administrator , reflects that the parents remain responsible for this obligation (R. 99-100, 116; Ex. P-F). The parents’ adjusted gross income for 2011 was
$39,819 (Ex. P-K). The student’s mother credibly testified that her family’s financial circumstances have prevented them from making any payments toward the $48,000 obligation they incurred for enrolling the student during the 2011/12 school year (R.
99, 102-103, 113; Exs. P-F, P-K).
G. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parents of having secured private related services for the student during the 2011/12 school year (other than those included in the cost of IVDU’s tuition), or that the student was denied related services by the DOE prior to the 2011/12 school year, the parents’ claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied (Ex. P-A at 2-
3).
H. Transportation
The parents’ request for reimbursement for transportation costs to and from the during the 2011/12 school year is also denied (Ex. P-A at 3). Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. §
300.139(b)(1)(ii); Letter to Luger & Weinberg, 58 IDELR 199 (OSEP Dec. 6, 2011).
The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law §
4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch.
Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22,
1994).
Here, however, as there were no bills or other evidence of the actual transportation costs incurred by the parent, I must dismiss that aspect of the parents’ claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01-012 (SRO Dec. 19, 2001).
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 for the 2011/12 school year is GRANTED;
(2) within thirty (30) days of the date of this Order, the DOE shall directly pay the balance of the student’s tuition associated with her education during the 2011/12 school year;
(3) the parents’ claim for reimbursement of transportation costs for the student to and from for the 2011/12 is DENIED; and
(4) the parents’ claim for reimbursement of the cost of related services (other than those included in the cost of tuition to ) provided during the 2011/12 school year is DENIED. Dated: March 28, 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 MAY 21, 2012
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 2/22/12, 4 pgs.
B. Program Description, undated, 1 pg.
C. Ten Day Notice Letter/Fax Confirmation, 8/22/11, 2 pgs.
D. Final Notice of Recommendation (FNR)/Fax Confirmation, 6/13/11, 2 pgs.
E. Affidavit of Payment, 2011/12, 1 pg.
F. Tuition Contract/Schedule of Fees, 1 pg.
G. , Student’s Daily Schedule, 2011/12, 1 pg.
H. Attendance Record, 4/30/12, 1 pg.
I. Academic Progress Report, Fall 2011, 6 pgs.
J. [withdrawn]
K. U.S. Individual Tax Return, 2011, 2 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 5/3/11, 17 pgs.
2. Final Notice of Recommendation (FNR), 6/13/11, 1 pg.
3. Observation & Educational Evaluation, 4/13/10, 5 pgs.
4. Social History Update Report, 4/13/10, 2 pgs.
5. Observation, 11/22/10, 2 pgs.
6. Minutes of CSE Meeting, 5/3/11, 1 pg.
IMPARTIAL HEARING OFFICER
I. Letter to parties from IHO, 3/10/12, 5 pgs.
II. Confirmation of Extension, 3/28/12, 1 pg.
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 12, 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
III. Confirmation of Extension, 5/25/12, 1 pg.
IV. Confirmation of Extension, 7/5/12, 1 pg.
V. Confirmation of Extension, 7/27/12, 1 pg.
VI. Confirmation of Extension, 8/25/12, 1 pg.
VII. Confirmation of Extension, 9/27/12, 1 pg.
VIII. Confirmation of Extension, 10/29/12, 1 pg.
IX. Confirmation of Extension, 12/3/12, 1 pg.
X. Confirmation of Extension, 12/19/12, 1 pg.
XI. Confirmation of Extension, 2/6/13, 1 pg.
XII. Confirmation of Extension, 2/12/13, 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. 86-87, 130-131; Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII).
[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[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.
[8] NYCRR § 200.5(j)(4)(ii).