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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: March 21, 2013
April 8, 2013
Actual Record Closed Date: April 17, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2013
ESQ., Attorney — Student
Parents
DR., District Representative, CSE — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON APRIL 8, 2013
ESQ., Attorney — Student
Teacher (via telephone) — Student
Director of Special Education (via telephone) — Student
District Representative, CSE — DOE
This impartial due process proceeding arises under the Individuals with — DOE
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 parents in a due process complaint notice dated March 29, 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 and/or directly pay for costs associated with the student’s unilateral private placement at the School in for the 2012/13 school year (Ex. P-A).[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 of the resolution period. 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). If extensions have been granted, the decision shall be rendered and mailed no later than 14 days from when the record is closed. See 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 September 10, 2012. Prehearing conferences with the parties were held on November 16, 2012 and March 7, 2013 to clarify the issues and set a date for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). At the March 7, 2013 pre-hearing conference, the parents moved for an interim order on transportation (R. 14; Ex. P-A at 6). In an Interim Order dated March 20, 2013, I directed the DOE to provide the student with small bus transportation with a one-to-one health paraprofessional to and from the for the duration of the 2012/13 school year (Ex. IHO-I at 6). Hearings in this matter were thereafter held on March 21, 2013 and April 8, 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 September 8, 2012 hearing request, the student was old and educationally classified as having (Exs. P-A, P-B at 1).[3] For the current academic year (the 2012/13 school year), the student attends the School (Exs. P-A, P-E, P-J, P-M, PN, P-O, P-Q). The Commissioner of Education has not approved the Vincent Smith School 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-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
The student has had since birth when he was diagnosed with Academic problems and have been issues since early development (Ex. P-I at 1). The student obtained services from seven (7) months until three (3) years of age. He has been placed in full time special education classes for his entire educational history to date. Between three (3) years of age and kindergarten, he was in a pre-school program at he attended this school between three (3) years of age and five (5) years of age. The student loved school when he started kindergarten. He got along well with his kindergarten teacher and the children as well. He was . At six (6), he attended grade at . He did not have any problems at the time that he started first grade. The student was recalled enjoying school; he even had some friends in grade. He was distractible in grade; he had problems remaining on task but he always wanted to please the teacher and tried his best to do so. Academically, his first grade performance showed progress, however, he did not meet his for extensions of the case compliance date were granted (Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII). IEP goals; his grades were mixed and he failed to meet his required academic goals. In first grade, he had private tutoring, and he was evaluated by a DOE school psychologist. Since first grade, the student’s academic performance continues to be listed as poor and his progress is not what the IEP expects of him. Since , the student has had a one-to-one paraprofessional who sits with him to help him complete classroom tasks (Ex. P-I at 2).
During the 2011/12 school year, the student participated in full-time, special education classes. The student attended fourth grade (Special Education Bridge Class). He was transferred to when he started third grade. The student’s mother reported that he had no subject strengths at that time because all subjects were below grade level. He reportedly made progress in reading since he enjoys that activity. However, math, science and English/Language Arts (“ELA”) were noted to be particular weaknesses. As of the spring of 2012, the student was reading at the second grade level and was failing a second grade math class. Relative strengths of the student noted at that time were behaving correctly and wanting to please his teacher. Relative weaknesses of the student noted at that time were concentration, organization, hand writing, memorizing and paying attention in class (Ex. P-I at 2-3).
In the spring of 2012, the student was referred by his mother to obtain a neurodevelopmental evaluation due to academic difficulties. The results of the intellectual assessment indicated that the student’s overall level of functioning was within the borderline range of functioning (FSIQ; SS=50). On measures assessing one’s ability to reason in hypothetical social situations and general knowledge, the student scored in the borderline range (VCI; SS=17). Somewhat similar abilities were noted on tests that measured the student’s ability to use higher level reasoning in tasks involving visuospatial processing (PRI; SS=16). His scores were also within the borderline range on auditory short term memory and sequencing indicating diminished ability to attend to auditory stimuli and manipulate information in working memory (WMI; SS=18). On tasks measuring his ability to quickly scan, sequence and discriminate simple visual leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10). information, the student scored in the borderline range (PSI; SS=3) (Ex. P-I at 6).
On the Wechsler Individual Achievement Test - Third Edition (“WIAT-III”) the student’s performance ranged from Low to Below Average. His Total Achievement score was in the low range (SS=74, fourth percentile). The student was performing below his grade level and age in all areas assessed by the WIAT-III (Ex. P-I at 8). The evaluator recommended that the student be educated in a classroom with a population of children that require social skills training and direct interactions with the teacher and teaching assistant (Ex. P-I at 15).
At a meeting held on March 22, 2012, the CSE developed an IEP for the student for the 2012/13 school year. The CSE recommended that the student receive instruction in ELA and math in a 12:1+1 special class setting in a community school. The balance of the student’s instruction was to take place in a general education setting without special education support. Recommended related services included: small group (2:1) and individual speech/language therapy; small group (2:1) physical therapy; small group (2:1) occupational therapy; and a full-time health paraprofessional (Exs. P-A at 2, P-B at 8).
In a Final Notice of Recommendation (“FNR”) dated August 23, 2013, the DOE informed the parents that the student would receive his recommended special education program at P.S. 97 (the Highlawn School) (Ex. P-D).
In letters dated August 21, 2012 and August 27, 2012, the parents wrote to the CSE to reject its proposed program for the student and advised the CSE of their intent to place the student at the at public expense for the 2012/13 school year (Ex. P-E). On August 30, 2012, the parents signed a tuition contract for the student’s enrollment at the Vincent Smith School for the 2012/13 school year (Ex. P-J).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment to the should be denied. was an inappropriate and overly restrictive placement for the student which failed to meet his special education needs. The relevant equities also do not support the parents’ claim (R. 34, 63).
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 2012/13 school year as well as related service 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 the School (Ex. PA).
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. Carter, 510 U.S. & (1993); School Comm. of Burlington v. Dep’t of Edu., 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. The Proposed Public Program
At the hearing, the DOE declined to offer any evidence concerning the first criterion of the Burlington/Carter analysis, thereby acknowledging that it failed to offer the student a FAPE for the 2012/13 school year (R. 63). Accordingly, I find in the parents’ favor on that issue.
C. Appropriateness of the Vincent Smith School
Given my finding that the DOE failed to provide the student with a FAPE during the 2012/2013 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. and Ms. , I find that the School is an appropriate placement for the student because it provided him with specially designed, individualized instruction to meet his unique educational needs. The is registered by the New York State Board of Regents and accredited by the New York State Association of Independent Schools with a curriculum which mirrors New York State curriculum standards. The is dedicated to providing a small, nurturing, supportive academic and social setting for students with disabilities (R. 119,121; Ex. P-M at 1)
The student participates in Ms. grade class this academic year. Ms. is a New York State certified elementary school teacher. There are eight (8) students in Ms. s grade class this academic year. From informal assessments administered by Ms. to the student at the outset of the current academic year (2012/13), she understood that he was functioning at about the third grade level in math and at about the fourth grade level in reading. Ms. has observed the student display issues with attention, pragmatic language and processing. Ms. meets the student’s learning needs through multisensory, differentiated instruction, often on a one-to-one basis. Ms. stated that she breaks down the student’s assignments into smaller tasks to help him feel that he is completing the work and making progress. addressed and . A school-wide binder system is employed to help the student with organization (R. 82-83, 86, 89, 122, 126, 130-131, 138; Ex. P-M at 4). also meets individually with a reading specialist twice weekly for forty (40) minutes per session to improve his decoding and comprehension skills (R. 91-92, 111, 123-124, 137-138; Exs. P-M at 5, P-N at 1-3, 8).
D. 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 letters dated August 21, 2012 and August 27, 2012, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2012/13 school year (Ex. P-E). 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 private school tuition and services, i.e., $25,750, was unreasonable, (Ex. P-J), see Carter, 510 U.S. at 16.
E. Direct Payment 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 the Vincent Smith School 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 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 student's tuition costs for the 2012/13 school year. The parents incurred an obligation to pay the tuition and service costs in the amount of $25,750 for the student’s enrollment at the school during the 2012/13 school year. The tuition contract entered into the hearing record reflects that the parents remain responsible for this obligation (Ex. P-J).
The parents’ adjusted gross income for 2011 was $51,753 (Ex. P-K). While the parents have paid $1,440 toward their son’s private education costs, their financial circumstances have prevented her from making any additional payments toward the $25,750 obligation they incurred for enrolling the student in the the 2012/13 school year (Exs. P-J, P-K, P-
L).
F. Reimbursement, or Compensatory Education, for Related Service
Given the undisputed evidence that the student was denied appropriate speech/language therapy and occupational therapy services by the DOE throughout the 2012/13 school year, the student shall be entitled to 33 small group (2:1) therapy sessions, 11 individual therapy sessions and 37 small group (2:1) occupational therapy sessions as compensatory additional services (R. 133-137; Exs. P-A at 6, P-B at 8, P-P, P-
R). See, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005).
G. Transportation
The parents’ request for reimbursement for transportation costs to and from the during the 2012/13 school year is granted (Ex. P-B at 6). 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).
In an Interim Order dated March 20, 2012, I determined that the student is entitled to public transportation to and from the (Ex. IHO-I). It is undisputed that the student is now ten (10) years old, educationally classified as OHI and currently attending a nonpublic school within fifty (50) miles of his home. The DOE has not contested that the Vincent Smith School offers the student a similar special education program as that offered to the student by the CSE (R. 21; Ex. P-B at 8).
While the CSE did not approve special education transportation for the student, it recommended that he receive a full-time one-to-one health paraprofessional due to his significant medical needs (R. 14, 20; Ex. P-B at 8). The absence of special education transportation from the student’s IEP likely stems from the DOE’s recommendation that the student be educated in a nearby community school, i.e., P.S. 97 – the Highland
School, where the student received instruction during the past two (2) years (Exs. P-A at
5, P-B at 12).
As the student is entitled to receive suitable transportation by the DOE to and from his nonpublic school, see N.Y. Educ. Law § 4402(4)(d), I find that under the circumstances present here, suitable transportation constitutes a small bus with a one-to-one health paraprofessional. The student’s nonpublic school is 32 miles from his home, well within the law’s 50 mile radius but considerably farther than his neighborhood school. The CSE has previously recognized that the student’s significant medical condition requires the assistance of a full-time one-to-one health paraprofessional (Ex. P-
B at 8). Likewise, given the distance between the student’s home and his nonpublic school coupled with his medical condition, I find that a small bus is required.
Additionally, as the parents have submitted an affidavit of the actual transportation costs incurred by them in transporting the student to and from the School, I find that they are entitled to reimbursement from the DOE for such expenditures. Cf. Application of the Bd. of Educ., Appeal No. 01-012 (SRO Dec. 19,
2001).
H. Attorneys’ Fees
The parents’ request for attorneys’ fees must be denied (Ex. P-A at 6). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to such costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); see also Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). Since only a court can determine who is a prevailing party entitled to attorneys’ fees, I conclude that I lack subject matter jurisdiction over this aspect of the parents’ claim and dismiss it accordingly.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) the parent’s claim for reimbursement and/or direct payment of the student’s tuition and related service costs for his unilateral placement at School for the 2012/13 school year is GRANTED;
(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parents $1,440 which had been applied to the student’s tuition for his education at the for the 2012/13 school year;
(3) within thirty (30) days of the date of this Order, the DOE shall directly pay the the balance of the student’s tuition for the 2012/13 school year, i.e., $24,310;
(4) within thirty (30) days of the date of this Order, the DOE shall furnish the following compensatory additional services to the student via RSAs:
(a) 33 small group (2:1) therapy sessions, two (2) times per week, thirty (30) minutes per session;
(b) 11 individual therapy sessions, one (1) time per week, thirty
(30) minutes per session;
(c) 37 small group (2:1) occupational therapy sessions, two (2)
times per week, thirty (30) minutes per session; and
(5) within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for their actual expenditures incurred in providing the student with transportation to and from the during the 2012/13 school year. Dated: May 2, 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 MARCH 21, 2013
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 9/8/12, 7 pgs.
B. Individualized Education Program (IEP), 7/22/12, 18 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Interim Order on Transportation, 3/20/13, 7 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 8, 2013
PARENT
C. Measurable Annual Goals, 2011/12, 20 pgs.
D. Final Notice of Recommendation (FNR), 8/23/12, 1 pg.
E. Parent correspondence to CSE w/ proof of mailings, 8/12, 6 pgs.
F. Student Report Cards (Grades 2-4), 2009/10, 2010/11, 2011/12 school years, 4 pgs.
G. Letter to parents from (Principal), Promotion-in-Doubt, 1/24/12, 2 pgs.
H. Parent Reports on New York State Assessments (ELA, Math) (Grade 3),
2010/11, 2 pgs.
I. Neurodevelopmental Evaluation, Spring 2012, 23 pgs.
J. Vincent Smith School Enrollment Contract (2012/13), 8/30/12, 1 pg.
K. 2011 U.S. Individual Tax Return, 2 pgs.
L. Statement of Costs, 3/20/13, 1 pg.
M. , Elementary School Report Cards, (Grade 5 - 2012/13), 6 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
POST HEARING SUBMISSIONS
PARENT
N. , (Additional) Elementary School Report Cards, (Grade 5 - 2012/13), 8
pgs.
O. , Attendance Record (2012/13), 4/3/13, 1 pg.
P. Associates - Record of Missed Therapy Sessions, 2012/13, 2 pgs.
Q. Affidavit (Transportation), 4/11/13, 1 pg.
R. New York Placement Services (OT), 4/15/13, 1 pg.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II. Confirmation of Extension, 11/16/12, 1 pg.
III. Confirmation of Extension, 12/27/12, 1 pg.
IV. Confirmation of Extension, 1/16/13, 1 pg.
V. Confirmation of Extension, 2/19/13, 1 pg.
VI. Confirmation of Extension, 3/8/13, 1 pg.
VII. Confirmation of Extension, 4/8/13, 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] Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning,
[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.