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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: December 6, 2012
February 5, 2013
September 10, 2013
Actual Record Closed Date: September 13, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2012
LARA DAMASHEK, ESQ., Attorney — Student
None — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON FEBRUARY 5, 2013
LARA DAMASHEK, ESQ., Attorney — Student
Parents
District Representative — DOE
(via telephone) — DOE
Coordinator (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON SEPTEMBER 10, 2013
SONIA MENDEZ-CASTRO, ESQ., Attorney — Student
Parents
(via telephone) — Student
Representative — DOE
I. INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with 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 attorneys for the student and the parents in a due process complaint notice dated September 13, 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 parents and/or directly pay for costs associated with the student’s unilateral private placement at the in Brooklyn for the 2012/13 school year (Ex. P-B).[1]
When a student in New York is eligible for education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on 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, or educational placement of a student with a , or a student suspected of having a , 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 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 forty-five (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
On October 16, 2012, I was appointed by the DOE to hear this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on November 16, 2012 to clarify the issues and set dates for the impartial hearing. See 8 NYCRR § 200.5(j)(3)(xi). At a hearing held on December 6, 2012, the parents moved for an interim order on pendency (R. 16; Ex. IHO-I at 3). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parents’ motion. In an Interim Order on Pendency dated January 15, 2013, I found that the was the student’s last agreed upon placement by virtue of a July 19, 2012 Findings of Fact & Decision rendered by Impartial Hearing officer James P. Walsh and ordered the DOE to maintain the student at the at public expense effective September 13, 2012 until such time as proceedings in this matter concluded (R. 19-21; Ex. IHO-I at 5-6). Hearings in this matter were thereafter held on February 5, 2013 and September 10, 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
The parties’ familiarity with the student’s educational history, as set forth in Impartial Hearing Officer James P. Walsh’s July 19, 2012 Findings of Fact and Decision, is assumed and will not be restated here (Ex. P-A at 3-10).
At the time of the September 13, 2012 hearing request, the student was For the 2012/13 school year, the student attended an ungraded program at the (Exs. P-B, P-D, PE, P-F, P-G). The Commissioner of Education has not approved the as a school with which public school districts may contract to instruct students with . See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for education and related services as a student with an educational (i.e., ) is not in dispute in this hearing (Ex. P-B at 2).3 See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).
As of the spring of 2012, the student had attended the for the previous and shared a classroom with three (3) other students. The student received a full day of academic and vocational instruction at the which employed models of instruction. The student communicated through the use of as well as used a few signs. The student worked on an array of programs targeting functional and promoting independence of daily living skills, such as food preparation, laundry, shopping, stocking/delivering supplies and mail delivery (Ex. SD-4 at 1).
According to an April 16, 2012 annual review report prepared by the , the student participated in instructional work sessions with one-to-two group activities. The student followed a visual schedule and referred to it throughout the day in order to process the expectations for his day.
Based on their work with the student during the 2011/12 school year, the student’s teachers and at the summarized the student’s instructional experience by stating: [The student] continues to make progress throughout the school year. [
At a meeting held on April 26, 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 school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: education transportation,
In a Final Notice of Recommendation (“FNR”) dated June 6, 2012, the DOE identified the as the student’s placement for the 2012/13 school year.
On September 1, 2012, the student’s parents signed a tuition contract with the for the student’s enrollment there for the 2012/13 school year (Ex. P-F).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment to the should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment for the 2012/13 school year. The proposed program was reasonably calculated to confer meaningful educational benefit to the student. The was an inappropriate and placement for the student which failed to meet his 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 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. The appropriately addressed the student’s educational needs. The relevant equities also support an award of reimbursement of the student’s tuition to the (Ex. P-B).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with have available to them a free appropriate public education (“FAPE”) that emphasizes education and related services designed to meet needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with 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 . 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 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 s 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 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 elected 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 IEP Goals
The parents allege that the annual goals developed by the CSE for the student did not adequately address his particular needs (Ex. P-B 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 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 . 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, 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 are impermissible vague (Ex. P-C at 3-5), 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 (R. 70; Ex. P-C at 3-5, 8). 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. P-C at 3-5). 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).
2. Class Size/Staffing Ratio of Proposed Program
In this case, a meaningful analysis of the parents’ claims with regard to the proposed 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 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-B, P-C). See Application of a Student with a (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-22 (SRO June 20, 2011).
3. Adequacy of Transition Planning
The parents allege that the CSE’s transition plan for the student was generic and vague (Ex. P-B at 3). I agree.
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 under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, 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.
The April 26, 2012 IEP lacks even a minimal description of the student’s postsecondary education, employment, and independent living goals. Likewise, it lacks a meaningful statement of transition services needed to assist the student Instead, the transition plan contained in the April 26, 2012 IEP impermissibly attempts to shift responsibility for the development of a coordinated set of transition activities to other community agencies and resources and to the student, who, as noted earlier, has significant delays in all areas of learning (R. 71-75; Exs. P-B at 2-3, P-C at 8).
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 him to benefit educationally from that instruction. The DOE failed to meet its evidentiary burden and demonstrate that the student would have received sufficient direct instruction in the proposed program to address his significant global deficits (Exs. SD-4, P-C at 1-2). While Ms. , a Unit Coordinator at the assigned school who has never met the student, stated that the teacher might work individually with a student during the course of the school day as part of differentiated instruction, she acknowledged that “it is not the major part of the day” (R. 99, 121-122). Ms. testimony, as well as that of Ms. , a school who participated in the April 26, 2012 CSE meeting, failed to demonstrate that the class and recommended related services were reasonably calculated to meet the educational needs (Ex. P-C).
D. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012 school year, I turn to the appropriateness of the 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 his 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 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 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 a 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-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the credible testimony offered by Ms. , Principal of the , and the parent, I find that the was an appropriate placement for the student because it provided him with ly designed, individualized instruction to meet needs, supported by such services as were necessary to permit the student to benefit from instruction (R. 137-164; Exs. P-D, P-E).
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 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.
The parents’ September 13, 2012 due process complaint states that in a letter from counsel dated June 15, 2012, the parents gave the DOE 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-B at 2). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is 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 the was unreasonable (Exs. P-F, P-G, P-H), see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2012/13 school year is GRANTED; and
(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parents for all costs associated with the student’s enrollment at the for the 2012/13 school year. Dated: September 25, 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 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 DECEMBER 6, 2012
PARENT
A. Finding of Fact & Decision, 7/19/12, 13 pgs.
B. Impartial Hearing Request/Due Process Complaint Notice, 9/13/12, 6 pgs.
C. Individualized Education Program (IEP), 4/26/12, 13 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 5, 2013
PARENT
None
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Update, 4/22/10, 2 pgs.
3. , 3/31/11, 1 pg.
4. Annual Review Reports, 4/16/12, 13 pgs.
5. Final Notice of Recommendation, 6/6/12, 1 pg.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 1/15/13, 8 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 30, 2012
PARENT
D. Progress Report 2012/13, 2/22/13, 7 pgs.
E. Annual Review, 4/5/13, 17 pgs.
F. Enrollment Contract, 9/1/12, 3 pgs.
G. Affidavit of Payment, 2/15/13, 1 pg.
H. Cancelled Checks, various dates, 2 pgs.
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
II. Confirmation of Extension, 11/16/12, 1 pg.
III. Confirmation of Extension, 12/6/12, 1 pg.
IV. Confirmation of Extension, 2/5/13, 1 pg.
V. Confirmation of Extension, 3/3/13, 1 pg.
VI. Confirmation of Extension, 4/3/13, 1 pg.
VII. Confirmation of Extension, 4/28/13, 1 pg.
VIII. Confirmation of Extension, 6/3/13, 1 pg.
IX. Confirmation of Extension, 6/12/13, 1 pg.
X. Confirmation of Extension, 8/2/13, 1 pg.
XI. Confirmation of Extension, 9/2/13, 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 for extensions of the case compliance date were granted (R. 8, 21-22; Exs. IHO-II, IHO-III, IHO-IV, IHO- V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI).
[4] The term “free appropriate public education” means 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.