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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: May 6, 2013
May 20, 2013
Actual Record Closed Date: July 1, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2013
ESQ., Attorney — Student
Parents
DOE Representative — DOE
-, (via telephone) — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 20, 2013
ESQ., Attorney — Student
Parents
Parents
Director (via telephone) — Student
DOE Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated December 18, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent and/or directly pay for costs associated with the student’s placement at the School for the 2012/13 school year (Ex. PA).1
When a student in New York is eligible for 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
I was appointed by the DOE to hear this matter on December 19, 2012. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on May 6, 2013 and May 20, 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 December 18, 2012 hearing request, the student was ( ) years old and attending the grade at the School in (“ ”) (Exs. SD-1 at 1, SD-
1 References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 2 at 1, SD-3, P-A, P-B, P-D, P-F, P-K). The Commissioner of Education has not approved as a school with which school districts may contract to instruct students with . See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with a learning disability is not in dispute in this hearing (R. 22; Exs. SD-1 at 1, P-A). See 34 C.F.R. § 300.8(c)(6); 8 NYCRR § 200.1(zz)(6).[3]
The student began attending preschool at age ( ) at , where he received and a ( ) hours of instruction, ( ) days per week. At age ( ), he was enrolled in a class for days, ( ) days per week. He was , did well , and no was evidenced. For , he transitioned to , where he for a period of -to- weeks. He was fine thereafter, and did well that year (Ex. P-E at 3).
The student attended through the grade. As per parent recollection of , he acquired and , and was an “ ” student. While the work in school did not pose per se, the student required and to complete his homework from grade on. It was a for his parents to keep the student and at home, as he the and was easily . However, with parent support and structure provided by the school (e.g., a homework notebook that went back and forth between home and school daily), the student did . He maintained an overall Average in the - , and attained ( ) on his . The student also did well , and had a close knit circle of friends throughout school. Teachers reported that he was a , boy, a student, and a pleasure to have in class (Ex. P-E at 3).
After graduating from , the student transitioned to grade honors/arts program at ( ). Academically, the student began his first year in school well, with scores in the and a few in the . He performed best in and History, ( ) classes headed by highly structured teachers. Mid-year however, the student started to experience , particularly with and . He to , and materials, and seemed “ .” A , youngster who could be “ ,” the student wouldn’t ask questions when he did not understand concepts or procedures. At home, he required even more -toto organize his and and . By the end of the year, his grades to the in some subjects (Ex. P-E at 3-4).
Concerned about his , the student’s parents referred him for an through the . Based upon that , the student was classified as and granted an IEP on June 11, 2009. According to the IEP, the student’s teachers were in the areas of / skills, and in . Formal with the however, revealed relative strengths in mathematics and ( ) year in reading ( ), and in ( , , and ) (Ex. P-E at 4).
The June 11, 2009 IEP recommended that the student remain in a program with - (“ ”) per week. Also recommended on the IEP were / such as seating, , and various teaching/organizational strategies (e.g., providing models and guided practice until concepts were mastered; experience in reviewing and revising writing; use of checklists for editing; use of planner; checking on his assignments daily, etc.) (Ex. P-E at 4).
The student began his grade year in September, 2009 with IEP services in place. or weeks into the semester, it became clear to the parents that the student was . At home, he continued to have and / his assignments and studying for tests independently. His , and he expressed greater and around school (Ex. P-E at 4).
The parents called a meeting in October of 2009 to share / information, coordinate efforts and formulate a plan together with the student’s teachers and . At that meeting, it was agreed that in addition to meeting with the student per week with another student, the teacher, Ms. , would send out a form to all of his teachers to keep track of his progress on a regular basis. His teacher also agreed to monitor the student to ensure that he had written assignments down in a planner and had the materials he needed (Ex. P-E at 5).
As of December 2009, the student continued to , even with ,a -to- math tutor and homework/organizational support from teachers and family members. The student’s class performance at that time was as follows: Drama ( ); English ( ); Spanish ( ); Social Studies ( ); Math ( ); Physical Education ( ); Science ( ). On the report card, his social studies teacher noted “ ,” and his math teacher noted “ / / grades on class ” (Ex. P-E at 5).
After consultation with the student’s content-area teachers, Ms. that the student exhibited and class settings. In addition to and performance on , his teachers indicated to Ms. that it takes him time to settle in at the beginning of class. According to his teachers, he was often “ [ ] ” (Ex. P-E at 5).
In December of 2009, the student was referred for a by his . An conducted by revealed that the student was a youngster who possessed at least overall ( ), with relative strengths in verbal and nonverbal reasoning extended to the and , respectively. Further , , and parent/teacher revealed relative in aspects of executive functioning, and the overlap between executive function and language, visuospatial problem-solving, and academics.[4] The student also performed expectations on measures of , , and / (Ex. P-E at 7-8, 23).
with the - revealed of (at least to year grade expectations) on measures of reading (accuracy, fluency, comprehension) and more in and . These appeared to to be associated with challenges in , , and executive functioning. According to , the student met - criteria for diagnoses of and of Written Expression (Ex. P-E at 23).
The - Fourth Edition (“ - ”) was also administered by to determine the student’s and language skill development. The student performed within the to ranges in both and language domains. He experienced relative , however, on selected level / function (Ex. P-E at 8).
In terms of functioning, the student’s , taken together with history and parent, teacher and - suggested to that he was demonstrating the features of /
( / ): Type. The student was also demonstrating a good deal of at that time due to his / a and (Ex. P-E at 24).5
Based on the data derived from her , recommended (among other things) that the student attend a , classroom within a , school setting where he could receive individualized teaching, classroom accommodations and / , while at the same time having the opportunity to learn and socialize alongside typically developing peers (Ex. P-E at 24). During the 2011/12 school year, the student’s grade, he attended the Program. The student’s class sized ranged from - ( ) students in Language Arts to about ( ) students in Math and Biology (Ex. SD-2 at 1).
In January of 2012, the student was referred for a due to . Based on using the - , the student was determined to be functioning within the range ( ). He manifested in tasks related to ( ) and ( ). skills were noted in ( ) and of information ( ) (Ex. SD-2 at 2-3 Academically, the student scored in the range of functioning on the - of ( ; ). Areas of strength were noted in ( ) and and with ( ). He scored within grade level in math fluency ( ) and word problems ( ). He manifested some in ( ), ( ) and ( ). within age expectancy ( ) (Exs. SD-1 at 1, SD-2 at 2-3).
At a meeting held on March 23, 2012, the met to develop an IEP for the student for the 2012/13 school year. The recommended that the student receive the majority of his instruction in departmentalized classes for all subjects in a school (R. 22-23; Ex. SD-1 at 5, 9). The designation of the student’s placement was initially deferred (in April of 2012) pending the conclusion of the student’s program at (Ex. P-D). In a Final Notice of Recommendation (“FNR”) dated June 8, 2012, the DOE advised the parents that the student’s recommended program would be implemented at located at in (Ex. SD-3).
On May 8, 2012, the parents signed an enrollment contract with for the student’s in its Program during his grade (the 2012/13 school year) (Ex. P-H). In
The student has and takes as needed (Ex. SD-2 at 1). a letter dated August 21, 2012, the parents advised the DOE of their rejection of the ’s proposed program for their son and of their intent to make a unilateral placement of the student at public expense at for the 2012/13 school year (Ex. P-C).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s placement at for the 2012/13 school year should be denied. The ’s proposed program offered the student a free appropriate public education in the least restrictive environment. was an inappropriate program for the student. The relevant equities mitigate against a reimbursement/direct payment award (R. 203-206)
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement at for the 2012/13 school year. The ’s proposed program for the student was both and and served to deny the student a free appropriate public education. 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 (R.200-203).
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.[6] 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
1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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); 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. Composition of March 2012 CSE
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 parent alleges that the March 23, 2012 CSE was not properly constituted (Ex. P-A at 1).
An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
The hearing record reflects that the March 23, 2012 meeting was comprised of all of its required members. See 8 NYCRR § 200.3(a). In attendance at the March 23, 2012 meeting were Mr. , the teacher and school district representative; Ms. , one of the student’s grade teachers at ; Mr. , the student’s father; Ms. - , a school ; and Ms. , an additional parent member (R. 21; Ex. SD-1 at 10-12).
C. Adequacy of Evaluations
The parents allege that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2012/13 school year (R. 200; Ex. P-A at 1). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
The parents specifically assert that the January 9, 2012 lacked a classroom observation (R. 33, 200). An initial must include an observation of the student in the student’s learning environment (including the regular classroom setting) to document the student’s academic performance and behavior in the areas of difficulty. See 8 NYCRR § 200.4(b)(1)(iv). As part of a reevaluation, a group that includes the CSE, and other qualified professionals, as appropriate, shall review existing on the student and on the basis of that review, shall identify what additional data, if any, is needed. See 8 NYCRR §§ 200.4(b)(5)(i)-(ii).
Here, the March 2012 CSE had information before it from the January 2012 which indicated that the student was in the range, had scored in the range of functioning on , and , appeared to be a popular, well related young man (R. 24; Exs. SD-1 at 1, SD-2 at 3). Ms. reported during the March 2012 meeting that the student was “ ” and was “ ,” but was “ ” and had “ ” (R. 36; Ex. SD-1 at 1). Under the circumstances of this case, I find that the information provided by Ms. - in her January 2012 and Ms. ’s to the committee did not warrant further through a of the student’s ability to function in a setting (Exs. SD-1 at 1, SD-2 at 3).
Alternatively, while the parents also argue that the failed to appropriately consider ’s December 2009 which called for, among other things, the student’s attendance in a , structured classroom within a , school, I do not find that the CSE’s failure to adhere to this specific recommendation to be reversible error (R. 37-39; Exs. PA at 1, P-E at 24). See Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (“the mere fact that a separately hired expert has recommended different programming does nothing to change this, as deference is paid to the District, not a third party”), aff’d, 142 Fed. Appx. 9 (2d Cir. 2005), cert. denied, 546 U.S. 1091. ’s December 2009 was conducted more than ( ) years before the March 2012 CSE. At the time of ’s December 2009 , the student was in grade, while the March 2012 CSE was planning for the student’s grade (Exs. SD-1, P-E). ’s December 2009 recommendation was also premised, in part, on the student’s receipt of instruction in classes with support, while the March 2012 CSE recommended that the student receive the majority of his instruction in classes (Exs. SD-1 at 5, P-E at 3-5).
D. Adequacy of IEP Goals
The parents allege that the annual goals developed for the student did not adequately address his particular needs (Ex. P-A at 1). 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).
I find that the CSE’s IEP for the student for the 2012/13 school year established annual educational goals which were reasonably related to his . On the January 9, 2012 conducted by Ms. - , the student , and (Exs. SD-1 at 1, SD-2 at 3). The student’s IEP for the 2012/13 school year included annual goals in reading, writing and comprehension which were consistent with those identified in the student’s and described what he could reasonably be expected to accomplish within a month period (Exs. SD-1 at 3-5). 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 (Ex. SD-1 at 3-5). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also
From the credible testimony offered by Mr. ,a at School who has previously taught students in classes, I find that the CSE’s recommended program would have provided the student with personalized instruction with sufficient support services to permit him to benefit educationally from that instruction (R. 57, 65). The CSE recommended that the student receive the majority of his instruction in classes in a school (Ex. SD-1 at 5, 9). The DOE designated School as the location of the student’s program, which is a school for students aged through
(R. 59-62, 65; Ex. SD-3). Mr. explained that all classes at School are taught by State-certified teachers who break classes down into groups to facilitate learning (R. 59-60, 67-68). Given the student scoring in the range of and on recent , his goals of attaining a and attending a or and his history of classes with support, I find that the CSE’s recommendation that he receive instruction in classes was appropriate and reasonable (R. 62; Exs. SD-1 at 1, 3, SD-2 at 2, P-E at 3-5).
Alternatively, the parents assert that the student’s placement in a school which educated approximately student during the 2012/13 school year would have the student (R. 65, 201). Other than ’s statement that the student “ , classroom within a , ,” the parents do not cite any evidence in the hearing record which establishes that the size of School would have prevented the student from receiving a FAPE (Ex. PE at 24). By August 2012 it became clear that the parents would not accept the services recommended by the DOE in the IEP and that they intended to enroll the student at for the 2012/13 school year (Ex. P-C). Therefore, I find that the parents’ concerns regarding the size of the assigned school building are not supported by the preponderance of the evidence contained in the hearing record, and indeed, are speculative.
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 placement at 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.
F. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parents of having secured private related services during the 2012/13 school year, or that the student was denied services by the DOE prior to the 2012/13 school year, the parents’ claim for reimbursement for related services (Ex. P-A at 2), see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied.
G. Transportation
The parents request for reimbursement for transportation costs to and from during the 2012/13 school year is also denied (Ex. P-A at 2). 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 parents’ claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01-012 (SRO Dec. 19, 2001).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parents’ claims for tuition reimbursement and/or direct payment of the student’s tuition to the School for the 2012/13 school year is DENIED;
(2) the parents’ claim for reimbursement of transportation for the student to and from the School for the 2012/13 is DENIED; and
(3) the parents’ claim for prospective payment and/or compensatory education for the cost of related services from July 1, 2012 through June 30, 2013 is DENIED; Dated: July 9, 2013
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 6, 2013
PARENT
A. , 12/18/12, 2 pgs.
B. [Reserved]
C. [Reserved]
D. [Reserved]
E. , 12/09, 39 pgs.
DEPARTMENT OF EDUCATION
1. ( ), 3/23/12, 12 pgs.
2. , 1/9/12, 4 pgs.
3. ( ), 6/8/12, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 20, 2013
PARENT
B. , 10/25/13, 2 pgs.
C. , 8/21/12, 2 pgs.
D. , 4/17/12, 2 pgs.
F. , 5/1/13, 1 pg.
G. ( ) Invoice, 2012/13, 2 pgs.
H. , 5/8/12, 2 pgs.
I. , undated, 1 pg.
J. , 1/7/13, 1 pg.
K. , 4/30/13, 1 pg.
L. , various dates, 9 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
I. , 1/17/13, 1 pg.
II. , 4/8/13, 1 pg.
III. , 5/6/13, 1 pg.
IV. , 5/20/13, 1 pg.
IV. , 7/1/13, 1 pg.
Footnotes
[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. 76-77, 206-207; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Learning Disability means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).
[4] explained that executive functions refer to the higher order control functions that guide learning and goal -directed behavior. They include the ability to: sustain and divide attention; initiate, plan and organize an approach to tasks; hold and integrate information in working memory; self-monitor one’s own performance; process information rapidly and efficiently; detect implicit structure in ambiguous information, and retrieve words and information readily (Ex. P-E at 7-8, 23).
[6] 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
[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
[20] U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3). E. 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.