NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number:
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: January 9, 2013
March 19, 2013
April 30, 2013
June 6, 2013
July 1, 2013
Actual Record Close Date: July 24, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2013
Advocate — Student
Parents
ESQ., Attorney — DOE
Special Education Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2013
ESQ., Attorney — Student
Program Director, — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2013
ESQ., Attorney — Student
Parents
Teacher — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2013
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
Occupational Therapist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 1, 2013
ESQ., Attorney — Student
Parents
ESQ., Attorney — 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 originally requested by the advocates for the student and the parents in a due process complaint notice dated September 25, 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 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 period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
Following the filing of the September 25, 2012 due process complaint, I was appointed by the DOE to hear this matter on September 26, 2012. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated October 4, 2012, the DOE denied each and every allegation contained in the parents’ due process complaint (Ex. SD-11). See 8 NYCRR §§ 200.5(i)(4), (5). Pre-hearing conferences with the parties were held on November 16, 2012 and May 29, 2012 to clarify the issues, set dates for the hearing, and address subpoena objections. See 8 NYCRR § 200.5(j)(3)(xi). Hearings on the merits of this matter were held on: January 9, 2013; March 19, 2013; April 30, 2013; June 6, 2013; July 1, 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 25, 2013 hearing request, the student old and diagnosed with (Exs. SD-1 at 1-2, P-Q at 1, P-R at 1). For the 2012/13 school year, the student attended an ungraded program at the (Exs. P-A at 1, P-B, P-D, P-E, P-F, P-G, P-H, P-K, P-L). The Commissioner of Education has not approved as one with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. SD-1 at 1, SD-11 at 1, P-A at 1-2, P-R at 1). See 34 C.F.R. §
300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
In a notice dated April 3, 2012, the CSE invited the parents to attend an annual review meeting to be held on April 30, 2012 (Ex. P-O). At the April 30, 2012 meeting, the CSE described the student as a “ ” who had “shown progress over the past year.” The CSE stated that the student had gained some language, had increased and was learning letters of the alphabet. He was reportedly good . He was able to rote count to twenty (20) and recognized numbers to ten (10) (R. 40-42; Exs. SD-1 at 1, SD-2 at 2).
In the area of , the student was “ ” but was able to communicate using up to four (4) word utterances. The student was using a communication book with visual picture symbols to help him communicate . The student reportedly benefitted from static visual language boards and voice output to help him learn how to formulate longer sentences and keep his attention. The student also reportedly benefitted from waiting for up to twelve (12) seconds after giving him instructions so that he could process the information. A visual schedule, a token reinforcement system and frequent breaks were recommended for the student (R. 47-48; Exs. SD-1 at 1, SD-3, SD-4).
The student’s had reportedly shown improvement as evidenced by his ability to trace straight lines. The student demonstrated . His throughout his body made it difficult for him to
IHO-VIII, IHO-IX, IHO-X, IHO-XI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). maintain good posture in sitting and standing. The student also displayed poor coordination and motor planning. The student the classroom and during therapy (Ex. SD-1 at 1-2).
In analyzing the student’s development, the CSE noted that the student had shown “some improvement in making ” but still to do so. He was and seemed unaware of what was going on around him. He did not initiate interaction with his peers. He played with toys, but often not appropriately. He had difficulty attending to toys/structured board games for long periods of time (more than two (2) minutes) and would vocalize or perseverate on the same script if left to play alone with toys (R. 44-47, 65-67; Ex. SD-1 at 1-2).
To address the student’s academic, social, physical and management needs, the CSE recommended for the 2012/13 school year that he receive the majority of his instruction in a 6:1+1 special class in a specialized (District ) school on a twelve month basis. The CSE also recommended that the student receive related services of: special transportation (i.e., air conditioned vehicle, door-to-door transport); individual and small group (2:1) speech/language therapy; individual occupational therapy; individual physical therapy; and adaptive physical education (Ex. SD-1 at 11-12, 14-15).
In a letter dated August 15, 2012, the parents’ advocates advised the CSE of the parents’ rejection of the proposed program and of their intent to make a unilateral placement of the student at the Rebecca School at public expense for the 2012/13 school year (Ex. P-D).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 29-31).
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement at the for the 2012/13 school year. The CSE’s proposed program for the student was both procedurally and and served to deny the student a free appropriate public education. The student failed to make meaningful progress in a similar public program provided in the prior year. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s tuition to the (R. 31-32).
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);
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. Adequacy of IEP Goals
Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parents allege that the annual goals developed for the student did not adequately address his educational needs (Ex. P-A).
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).
Based on the credible testimony of Ms. , the student’s special class instructor during the 2011/12 school year and a participant in the April 30, 2012 meeting, and Ms. , the student’s occupational therapist during the 2011/12 school year, I find that the CSE’s IEP for the student established annual educational goals and short term instructional objectives which were reasonably related to his educational deficits. The April 30, 2012 IEP included annual goals in: gross motor skills, fine motor skills, following directions, communication, attention, time-ontask, and cognition, which were consistent with those educational deficits identified in the IEP and described what he could reasonably be expected to accomplish within a twelve (12) month period. The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (R. 3637, 39, 51-52, 71-90, 454, 458; Ex. SD-1 at 1-11, 17). 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). The IEP’s short-term instructional objectives in these areas represented measurable, intermediate steps between the student’s then-present levels of educational performance and his annual goals (Ex. SD-1 at 3-11).
C. Consideration of Special Factors - Interfering Behaviors
The parents allege that the CSE failed to develop an appropriate behavioral intervention plan (“BIP”) for the student (Ex. P-A at 2).[5]
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior. See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); 8 NYCRR § 200.4(d)(3)(i); see also E.H. v. Board of Educ., 2009 WL 3326627 (2d Cir. Oct. 16, 2009); A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); 8 NYCRR §§ 200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 (S.D.N.Y. Apr. 7, 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. Sept. 29, 2009). The decision regarding whether a student requires interventions such as a BIP rests with the CSE and is made on an individual basis. See Comments on Regulations, Consideration of Special Factors, 71 Fed. Reg. 46683 (August 14, 2006).
Based on the credible testimony of Ms. , I find that the April 2012 CSE considered sufficient information regarding the student’s when developing the student’s IEP. Ms. explained that the student’s other children or staff members (R. 103-104, 126-127). The evidence offered into the hearing record demonstrates that the CSE reasonably determined that a BIP was not necessary because: the student’s plan was in place (R. 70-71).
I also find that the student’s interfering behaviors were sufficiently addressed by the April 30, 2012 IEP itself. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-165 at 43 (SRO April 22, 2013). The IEP included annual educational goals and short-term instructional objectives for distractibility and focus (R. 55; Ex. SD-1 at 6-7, 9). The IEP also included program modifications of: visual support/schedule, a token reward system, frequent breaks, and repetition and review, which Ms. confirmed had adequately addressed the student’s management needs in class during the 2011/12 school year (R. 36-37, 39, 56-61; Ex. SD-1 at 1-3).
D. Functional Grouping in Assigned Classroom
The parents assert that the student would not have been appropriately grouped in the proposed special class. In this case, analysis of the parents' claims with regard to the functional grouping of the student in the assigned classroom during the 2012/13 school year are speculative and would require me to determine what might have happened had the district been required to implement the student's IEP.
The sufficiency of the DOE’s offered program is to be determined on the basis of the IEP itself. See R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 42 (S.D.N.Y. 2011), aff’d, 694 F.3d 167, 185 (2d Cir. 2012). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement it. See id.; see also Grim, 346 F.3d at 381-82 (holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program). Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP. See 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits. See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297, at *2 (2d Cir. Mar. 23, 2010); Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 (9th Cir. 2007); Houston Indep. School District v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).
In a letter dated August 15, 2012, the parents’ advocates informed the DOE of the parents’ rejection of the April 30, 2012 IEP and of the parents’ intent to make a unilateral placement of the student at at public expense for the 2012/13 school year (Ex. P-D). Given the parents’ rejection of special class for the student for the fall of 2012, I find that the DOE was not required to establish that the student would have been grouped appropriately in the proposed classroom in the fall of 2012.
Alternatively, even if I were to consider the merits of the parents’ grouping claims, I find that Ms. Balich offered credible testimony of the appropriateness of the functional grouping of her 6:1+1 special class at the time the April 30, 2012 IEP was implemented, on or about May 14, 2012, which demonstrated that the DOE did not deviate from the student's IEP in a material or substantial way (R. 69-70). See A.P., 2010 WL 1049297, at *2; Van Duyn, 502 F.3d at 821-22;
A. L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 502-03 (S.D.N.Y. 2011); D.D.-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 (E.D.N.Y. Sept. 2, 2011).
E. Parent Counseling and Training
The parents allege that the DOE failed to recommended parent training as mandated by both federal and State law (Ex. P-A at 2).[6] State regulation requires that an IEP indicate the extent to which parent counseling and training will be provided to parents, when appropriate.
See 8 NYCRR § 200.4(d)(2)(v)(b)(5). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home. See 8 NYCRR § 200.13(d). The Second Circuit has explained that "because school districts are required by [State regulation] to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service." R.E., 694 F.3d at 191. The Court further explained that “[t]hough the failure to include parent counseling in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement.” Id.
It is undisputed that the April 2012 CSE educationally classified the student as one with autism (Exs. SD-1 at 1, P-A at 2). A review of the April 30, 2012 IEP reveals that parent counseling and training was not included in the CSE’s recommendations and consequently the DOE failed to satisfy the requirement that such services be identified on the IEP (Ex. SD-1). See
8 NYCRR § 200.13(d). I find that this omission was harmless, however, given Ms. credible testimony that offered parent various workshops held on a regular basis, of which parents were given notice (R. 90-95; Exs. SD-7, SD-8).
F. Availability of Mandated Related Services in Proposed Program The parents allege that the student would not have been able to receive his full mandate of recommended related services (Ex. P-A at 2). School districts have obligations under the IDEA and Article 89 of the Education Law to deliver the services necessary to ensure that students with disabilities receive FAPE. Where a school district is unable to provide the related services on a student’s IEP in a timely manner through its employees because of shortages of qualified staff or the need to deliver a related service that requires specialized expertise not available from school district employees, the board of education has authority under Education Law §§1604(30), 1709(33), 2503(3), 2554(15)(a) and 4402(2)(b) to enter into contracts with qualified individuals as employees or independent contractors to provide those related services. See Application of the New York City Dep’t of Educ., Appeal No. 10-104 at 10 (SRO Dec. 20,
2010) quoting John P. King & Erin M. O’Grady-Parent, Q and A related to Contracts for Instruction, Question 5 (NYSED June 2, 2010).
The evidence entered into the hearing record does not support the conclusion that the DOE would have deviated from the student's IEP in a material or substantial way. See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. Mar. 23, 2010); T.L. v. Dep't of Educ. of City of New York, 2012 WL 1107652, at *14 (E.D.N.Y. Mar. 30, 2012); D.D.-S. v. Southold U.F.S.D., 2011 WL 3919040, at *13 (E.D.N.Y. Sept. 2, 2011); A.L. v. Dep't of Educ., 812 F. Supp.2d 492, 503 (S.D.N.Y. 2011). The April 30, 2012 IEP called for the student to receive related services of: special transportation (i.e., air conditioned vehicle, door-to-door transport); individual and small group (2:1) speech/language therapy; ; individual physical therapy; and adaptive physical education (Ex. SD-1 at 11-12, 14-15). Ms. credibly testified that the student had received all of his related service mandates during the 2011/12 school year and no credible evidence was offered by the parents to establish that his related service mandates would have been unmet during the 2012/13 school year (R. 90).
G. 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.
Based on the credible testimony offered by Ms. , I find that the special class provided the student with sufficient individualized instruction in order for him to make meaningful educational progress in his deficit areas and advance from grade-to-grade. Ms. stated that in the small class setting of the class, the student would receive individualized attention in deficit areas. Based on teacher observation and ABLLS data, Ms. stated the student had made meaningful progress in deficit areas while educated in her special class at during the 2011/12 school year. Ms. stated that , the student was able generalize skills across different environments (R. 49-50, 54, 99-100, 128; Ex. SD-2).
Alternatively, the parents’ assert that the special class program did not offer the student sufficient sensory support to meet his management needs (Exs. P-A at 2, P-Q, P-R). Based on the credible testimony provided by Ms. and Ms. , however, I find that special class program offered the student appropriate sensory support (R. 466). for the student, including , was implemented in 1 special class during the 2011/12 school year (R. 61-62, 64-65, 108-109, 465). A weighted vest was used to improve the (R. 62, 110-111). Ms. stated that the school team used Play-Doh, stringing beads, flex tubes, bubbles and vibrating toys to provide the student with sensory input and help him calm down and focus (R. 62, 108, 113). Both Ms. indicated that a was available to the student in the therapy room (R. 63, 112, 118, 465-466). While an outside provider indicated that the student would benefit from a full service sensory gym, I credit the opinions of Ms. , that additional sensory support was not necessary, based on the progress the student made in attention, sensory processing skills, and handwriting while educated in program
(R. 128, 454, 457; Ex. P-R at 4).
Having determined that the DOE offered the student a FAPE for the 2012/13 school year, it is not necessary to reach the issues of whether the student’s private placement at the Rebecca School was appropriate or whether equitable considerations support the parent's tuition reimbursement claim. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
H. Transportation
The parents request for reimbursement for transportation costs to and from the Rebecca School during the 2012/13 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, as there were no bills or other evidence of the actual transportation costs incurred by the parents, I must dismiss this aspect of the parent’s 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’ claims for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2012/13 school year is DENIED; and
(2) the parents’ claim for reimbursement of transportation costs for the student to and from the for the 2012/13 is DENIED; Dated: July 29, 2013
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to a State Review Officer (“SRO”) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties’ petition for review shall be personally served upon the opposing party 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 four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b)).
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 9, 2013
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 9/25/12, 4 pgs.
B. Program Description, 3/3/09, 4 pgs.
C. [withdrawn]
D. Letter to Chairperson from R. Shamah (10 day notice), 8/5/12, 2 pgs.
E. Interdisciplinary Report of Progress, 12/2012, 10 pgs.
G. Enrollment Contract 2012/13, 9/8/12, 6 pgs.
H. Affidavit, 12/11/12, 1 pg.
I. Proof of Payment, 8/20/12, 1 pg.
J. Poof of Benefit, 10/10/12, 2 pgs.
K. Student Attendance Form, 2012/13, 1 pg.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 4/30/12, 17 pgs.
2. School Progress Report, 2011/12, 2 pgs.
3. Reports & Parent Instruction, various dates,[10] pgs.
5. Parent Instruction Letter, undated, 1 pg.
6. Parent Response to Instruction Letter, undated, 3 pgs.
7. Parent Training Invitation, undated, 1 pg.
8. Suggested Home Reading List, various dates, 5 pgs.
9. Parent-Provider Correspondence, various dates, 17 pgs.
11. Due Process Response, 10/4/12, 4 pgs.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 19, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 30, 2013
PARENT
L. Rebecca School Affidavit & Attendance Card, 3/14/13, 2 pgs.
M. Proof-of-Payment, 2//27/13, 1 pg.
N. Letter to Parent from , 9/12/11, 1 pg.
O. Notice of IEP Meeting, 4/3/12, 2 pgs.
P. Rationale for Recommendation , 3/22/10, 2 pgs.
Q. Recommendation for Related Services (OT), 8/11/11, 2 pgs.
R. Evaluation, 7/2/12, 4 pgs.
S. Prescription for bear hug vest, 7/9/12, 1 pg.
T. [withdrawn]
U. Letter to Parent from C. Galbert, undated, 1 pg.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 6, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 1, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Letter to Special Education Unit, OGC, NYC DOE from , 12/11/12
II. Letter to Special Education Unit, OGC, NYC DOE, from , 12/17/12
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
III. Confirmation of Extension, 11/16/12, 1 pg.
IV. Confirmation of Extension, 12/31/12, 1 pg.
V. Confirmation of Extension, 1/9/13, 1 pg.
VI. Confirmation of Extension, 2/22/13, 1 pg.
VII. Confirmation of Extension, 3/31/13, 1 pg.
VIII. Confirmation of Extension, 4/10/13, 1 pg.
IX. Confirmation of Extension, 5/1/13, 1 pg.
X. Confirmation of Extension, 6/6/13, 1 pg.
XI. Confirmation of Extension, 7/22/13, 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 time 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. 6-7, 144-145, 407-408, 524; Exs. IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII,
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
[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)
[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). of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypothesis as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1 (mmm).
[6] Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program. 8 NYCRR § 200.1(kk); see also 34 C.F.R. § 300.34(c)(8).
[10] [withdrawn]