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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: September 11, 2012
April 10, 2013
Actual Record Closed Date: May 3, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11,
2012
Advocate — Student
DR., District Representative, CSE — DOE
CSE Teacher Assigned (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2013
Advocate — Student
Parents
Teacher (via telephone) — Student
DR., District Representative, CSE — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the advocates for the student and the parents in a due process complaint notice dated March 20, 2012, which was later amended on May 14, 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 2011/12 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 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 April 18, 2012 following the recusal of another hearing officer. Hearings in this matter were held on September 11, 2012 and April 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
At the time of the hearing request, the student , diagnosed with an ”) and educationally classified as a student with (R. 135; Exs. SD-1 at 1-2, SD-7 at 1, SD-9 at 2, SD-10, P-A).[3] For the 2011/12 school year, the student attended grade at the School (“ ”) (Exs. P-A, P-B, P-D, P-E, P-F, P-G, P-H, P-J, P-K). The Commissioner of Education has not 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 (Exs. SD-1, P-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
The student during his ninth grade, the 2010/11 school year. His teachers at estimated that, as of November 2010, his math and reading comprehension were at the seventh grade level and that his reading decoding ability was at . The student was noted to engage in . When with academic work, the student would other students. The student’s weaknesses during grade were addressed with verbal warnings and praise/rewards for positive behavior. The student’s teachers stated that the student benefitted from being in a small, self-contained class where he received the individual attention he needed (R. 32; Exs. SD-2, SD-9 at 3).
On a November 3, 2010 , administered when the student was fourteen (14) years old, the student’s cognitive functioning was assessed using the Wechsler Abbreviated Scale of Intelligence (“WASI”). On the WASI, the student achieved a Verbal Scale IQ score of ( Range), a Performance Scale IQ score of ( Range) and a Full Scale IQ score of (Exs. SD-7 at 1-2, SD-9 at 3).
The student’s academic functioning was assessed with the Wechsler Individual Achievement Test - Second Edition. The student achieved a Reading Composite Standard Score of ( percentile), which is in the upper limits of the Borderline range. The student’s Math Composite Score of ( percentile) was in the upper limits of the Low range. The student’s spelling skills were measured to be in the range (SS 81, percentile) (Exs. SD-7 at 3-4, SD-9 at 3, 5).
On August 2, 2011, the CSE convened to develop and IEP for the student for the 2011/12 school year. The CSE recommended that the student receive the majority of his 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, epilepsy, lead poisoning, 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). instruction in a special class in a community school. The CSE also recommended that the student receive the following related services in a separate location: small group (3:1) therapy, two (2) times per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; individual counseling, one (1) time per week for thirty (30) minutes per session; and small group (3:1) counseling, one (1) time per week for thirty (30) minutes per session (Exs. SD-1 at 5-6, 10).
On August 9, 2011, the DOE issued a Final Notice of Recommendation (“FNR”) indicating that the student’s special education program would be implemented at K495 ( School), which is located at (Ex. SD-11).
In a letter dated August 22, 2011, the parents advised the CSE of their rejection of its recommended program for the student and of their intent to unilaterally place the student at public expense for the 2011/12 school year (Ex. P-D).
IV. POSITION OF THE PARTIES
A. The DOE
The DOE offered the student a free appropriate public education for the 2011/12 school year. was an inappropriate and overly restrictive placement for the student. The relevant equities also favor the DOE (R. 22-24).
B. The Parent
The DOE denied the student a free appropriate public education for the 2011/12 school year. The recommended program of a special class with a staffing ratio of 15:1 in a community school would not have provided the student with adequate support for his educational needs. The parent did not receive an final notice recommendation (FNR) from the DOE until after the hearing was initiated. provided the student with specialized instruction designed to meet his unique educational needs. The relevant equities also support a tuition reimbursement/direct payment award (Ex. P-A).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private schools 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 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (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. Notice of Proposed Placement
The parent alleges that she did not receive written notice of the DOE’s proposed placement until after the 2011/12 school year had begun (Ex. P-A at 1-2).
The IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; Tarlowe v. New York City Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008). However, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE’s educational placement recommendation. See K.L.A. v. Windham Southeast Supervisory Union, 2010 WL 1193082, at *2 (2d Cir. March 30, 2010); T.Y. v. Dep’t of Educ., 584 F.3d 412, 419-420 (2d Cir. 2009); Concerned Parents & Citizens for the Continuing Educ. at Malcom X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980); Tarlowe, 2008 WL 2736027, at *6. Additionally, neither the IDEA nor State regulations require a district to maintain a particular classroom opening for a student while the student is enrolled elsewhere in a private school. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-008 (SRO March 7, 2011).
In this case, the DOE prepared an IEP for the student prior to the beginning of the 2011/12 school year (Ex. SD-1). An August 9, 2011 FNR was entered into the hearing record, indicating that the student’s special education program for the 2011/12 school year would be implemented at ), which is (Ex. SD-11). The student’s mother, however, offered unrebutted testimony at the hearing that she did not receive the August 9, 2011 FNR until after the 2011/12 school year had commenced (R. 137). Although I find the parent’s testimony credible on this point, given that the parents had rejected a similar special class program the year before, i.e., the 2010/11 school year, and had enrolled the student for both the 2010/11 and 2011/12 school years, I find that the late notice of the proposed placement for the 2011/12 school year 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 (Exs. SD-1, SD-3, SD-7 at 1, SD-9 at 1, SD-10, SD11, P-A at 1-2, P-D, P-H). 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). Moreover, there is no evidence in the hearing record to support the conclusion that, had the parents enrolled the student in the public school, the DOE would have deviated from substantial or significant provisions of an appropriately developed IEP for the student in a material way. See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. March 23, 2010); Cerra, 427 F.3d at 192.[5]
C. Annual Goals
In the parents’ due process complaint notice, they reserve the right to contest the appropriateness of the student’s entire IEP, including, but not limited to, the drafted annual goals (Ex. P-A at 2). While the reservation of rights to challenge the IEP’s annual goals is likely insufficient notice on the DOE of a contested issue, see 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.511(d), 300.508(d)(3)(i); 8 NYCRR § 200.5(j)(1)(ii), even if the issue were properly raised, I would find that the CSE addressed the student's needs through appropriate, measurable annual goals and testing accommodations listed on the August 2, 2011 IEP (Ex. SD-1 at 3-5, 7).
An IEP must include a statement of measurable annul 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). Each annual goal shall include the evaluative criteria, evaluation procedures and scheduled 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 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); 8 NYCRR § 200.4(d)(2)(iii)(b).
In this case, the hearing record shows that six (6) annual goals contained in the August 2, 2011 IEP specifically targeted the student’s needs as identified in the evaluations, observations and progress reports which were before the CSE (R. 35-37; Exs. SD-1 at 3-5, SD-2, SD-3, SD-4, SD-5, SD-6, SD-7, SD-10). Additionally, none of the evidence in the hearing record suggests that the student was eligible to participate in alternate assessments, and therefore, short-term objectives were not required on the IEP. See 8 NYCRR § 200.4(d)(2)(iv). Based on the information before the August 2011 CSE, the annual goals contained in the August 2, 2011 IEP appropriately addressed the students needs in the areas of reading, math, writing needs. The August 2, 2011 IEP also offered annual goals designed to improve the student’s abilities in multi-word math problems, reading comprehension, written expression (grammar, punctuation, capitalization, sentence structure), social skills, receptive and expressive language, and visual motor and motor perceptual skills. Each goal contained a specific evaluation criteria, evaluation procedure and evaluation schedule (Ex. SD-1 at 3-5). See 8 NYCRR § 200.4(d)(2)(iii)(b).
Mr. , the DOE’s regular education teacher assigned who participated in the August 2011 CSE, testified that the IEP goals were developed based on information provided by the student’s then-current teachers regarding R. 31, 35-37, 41-45). Testimony from Mr. also indicated that the parents were provided opportunities to ask questions and present concerns during the August 2011 meeting (R. 43, 45-46, 64). The student’s mother acknowledged at the hearing that she had received a copy of the IEP in the mail prior to the onset of the 2011/12 school year (R. 152-153). Therefore, I find that the hearing record, viewed as a whole, shows the parents had a meaningful opportunity to participate in the development of the student’s IEP, including the annual goals. See E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388-389 (S.D.N.Y. 2009).
D. Appropriateness of Proposed Public 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 testimony offered into the hearing record, I find that the August 2, 2011 IEP was not reasonably calculated to provide the student with meaningful education benefit. See Rowley, 458 U.S. at 192. While Mr. , who participated as a general education teacher at the August 2011 CSE meeting despite having never provided instruction to the student, cf. 20 U.S.C. § 1414(d)(1)(B)(ii); 34 C.F.R § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii), stated that a special class was appropriate to meet the student’s special education needs, he acknowledged that the only special classes operated by the DOE at community schools are at student-to-teacher ratios and that a smaller class ratio for the student was never an option for the CSE (R. 39, 46, 68, 90, 97-98). In contract, Mr. , the student’s teacher during the 2011/12 school year, credibly testified that the student needed his instruction provided in a smaller, self-contained model, such as the special class at . Without such small class instruction, Mr. explained, the student would not have been able to pass three (3) Regents exams by the end of the 2011/12 school year (R. 114-115, 118, 121-122; Ex. P-F).
E. Appropriateness of
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 parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the credible testimony offered by Mr. and the parent, I find that was an appropriate placement for the student because it provided him with specially designed, individualized instruction to meet his unique educational needs, supported by such services as were necessary to permit the student to benefit from instruction. During the 2011/12 school year, there were eighteen (18) students enrolled attending grades ten, eleven and twelve (R. 115). The student participated in a 6:1 self-contained special class while enrolled in the tenth grade (R. 115, 118, 123; Ex. P-F). At the outset of the 2011/12 school year, the student displayed difficulty with solving math word problems, reading decoding, written expression and frustration tolerance (R. 116, 121, 129-131). To address these needs, Mr. provided the student with clearly structured, multisensory instruction, he broke the special class into smaller instructional groups, and he provided the student with instruction during lunch time and his prep period (R. 119, 132-133; Ex. P-B). The student also received necessary related , and to address social skills, receptive and expressive language skills and visual motor skills (R. 115). As a result of Mr. instruction, the student became more organized and was able to pass three (3) Regents exams by the end of the 2011/12 school year (R. 122, 135-136; Ex. P-E).
F. Relevant Equities
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
In a letter from the parents’ advocate dated August 22, 2011, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at at public expense for the 2011/12 school year (Ex. P-D). 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 was unreasonable, (Ex. P-H), see Carter, 510 U.S. at 16.
G. Relief
“Where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief.” Mr. & Mrs. A., 769 F. Supp. 2d at 428. Since the parents have selected as a unilateral placement for the student, 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 majority of the student's private tuition costs for the 2011/12 school year. The parents incurred an obligation to tuition and service costs in the amount of $40,000 for the student’s enrollment at its during the 2011/12 school year (R. 138; Ex. P-H). The tuition contract and an August 23, 2012 Affidavit from Ms. , Secretary of reflect that the parents remain responsible for this obligation (R. 139; Exs. P-H, P-J). While the parents paid $11,000 toward their son’s private education costs, their financial circumstances have prevented her from making any additional payments toward the
$40,000 obligation they incurred for enrolling the student at for the 2011/12 school year (R. 138-139; Exs. P-H, P-I, P-J).
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parents’ claim for reimbursement and/or direct payment of the student’s tuition and related service costs for his unilateral placement at the l for the 2011/12 school year is GRANTED; and
(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parents $11,000 which had been applied toward the student’s tuition and related service costs for his education at the for the 2011/12 school year; and
(3) within thirty (30) days of the date of this Order, the DOE shall directly pay the School the balance of the student’s tuition and related service costs associated with his education there during the 2011/12 school year. Dated: May 24, 2013
_____________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JS;mv
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 SEPTEMBER 11, 2012
PARENT
A. Amended Due Process Complaint Notice/Impartial Hearing Request, 5/14/12, 4
pgs.
B. High School Description, undated, 2 pgs.
C. [Reserved]
D. Ten-Day Notice Letter, 8/22/11, 1 pg.
E. End of Year Progress Report, 6/12,[2] pgs.
F. School Class Profile, 2011/12, 1 pg.
G. School 10th Grade Schedule, 1/12, 1 pg.
H. Enrollment Contract, 2011/12, 1 pg.
I. Proof-of-Payment, various dates, 5 pgs.
J. Affidavit of ), 8/23/12, 1 pg.
K. High School Attendance Record, 2011/12,[1] pg.
DEPARTMENT OF EDUCATION
3. Observation, 11/19/10, 4 pgs.
4. Related Service Progress Report (OT), 3/15/10, 1 pg.
5. Related Service Progress Report (Speech), 11/11/10, 2 pgs.
6. Related Service Progress Report (Counseling), 11/15/10, 1 pg.
7. Update, 11/3/10, 6 pgs.
8. Letter to parents from (DOE School Psychologist), 11/15/10, 1 pg.
9. Individualized Education Program (IEP), 11/23/10, 17 pgs.
10. Social History Update, 11/3/10, 1 pg.
11. Final Notice of Recommendation (FNR), 8/9/11, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 10, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE
HEARING
PARENT
None.
DEPARTMENT OF EDUCATION
None.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 7/17/12, 1 pg.
II. Confirmation of Extension, 8/25/12, 1 pg.
III. Confirmation of Extension, 9/11/12, 1 pg.
IV. Confirmation of Extension, 10/29/12, 1 pg.
V. Confirmation of Extension, 12/3/12, 1 pg.
VI. Confirmation of Extension, 12/7/12, 1 pg.
VII. Confirmation of Extension, 2/6/13, 1 pg.
VIII. Confirmation of Extension, 2/27/13, 1 pg.
IX. Confirmation of Extension, 4/3/13, 1 pg.
X. Confirmation of Extension, 4/10/13, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional 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 an extensions of the case compliance date were granted (R. 101-102, 165-166; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO- VIII, IHO-IX, IHO-X).
[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
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] Although the DOE offered the parents the opportunity to visit the assigned school in the August 9, 2011 FNR, neither the IDEA nor State regulations confer upon the parents a right to visit the recommended school and classroom. In general, the IDEA requires parental participating in determining the educational placement of the student. See 34 C.F.R. §§ 300.116, 300.327, 300.501(c). The U.S. Department of Education’s Office of Special Educational Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities to observe their children in any current classroom or proposed educational placement. See Letter to Mamas, 42 IDELR 10 (OSEP 2004); see also Application of a Student with a Disability, Appeal No. 09-082; Application of the Dep’t of Educ., Appeal No. 08-097; Application of a Child with a Disability, Appeal No. 07-049; Application of a Child with a Disability, Appeal No. 07-013. Consequently, although the parrents may have wished to visit the assigned school, the fact that they were unable to do so before the onset of the 2011/12 school year did not result in a denial of a FAPE.
[1] Individualized Education Program (IEP), 8/2/11, 13 pgs.
[2] School Progress Report, 11/18/10, 2 pgs.