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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 20, 2012
September 25, 2012
October 11, 2012
December 3, 2012
Actual Record Closed Date: February 8, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2012
ESQ., Attorney — Student
Parents
Interpreter — Student
ESQ., Attorney — DOE
School Psychologist, CSE (Manhattan) (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2012
ESQ., Attorney — Student
Parents
Director, — Student
Interpreter — Student
ESQ., Attorney — DOE
Assistant Principal, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2012
ESQ., Attorney — Student
Parents
Interpreter — Student
Director, (via telephone) — Student
Occupational Therapist, (via telephone) — Student
Classroom Teacher, (via telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2012
ESQ., Attorney — Student
Parents
Classroom Teacher, (via telephone) — Student
Interpreter — Student
ESQ., Attorney — DOE
I. JURISDICTION - 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 attorney for the student and the parent in a due process complaint notice dated June 19, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent and/or directly pay for costs associated with the student’s unilateral private placement at for the 2010/11 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 June 22, 2012. In a due process response dated June 27, 2012, the DOE denied each and every allegation contained in the parent’s due process complaint (Ex. SD-1). See 8 NYCRR § 200.5(i)(5). Hearings in this matter were held on: September 20, 2012; September 25, 2012; October 11, 2012; December 3, 2012.[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 and educationally classified as a student (Exs. SD-3, SD-6, P-A).[3] For the 2010/11 school year, the student attended the (Exs. P-A, P-D, P-E, P-F, P-G, P-H, P-K). The Commissioner of Education has not approved the 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-3, P-A). See 34 C.F.R. § 300.8(c);[8] NYCRR § 200.1(zz).
On a March 19, 2008 evaluation, administered when the student was old, the student’s was estimated to be in the range as measured by the Stanford-Binet Intelligence Scale, Fifth Edition (“SB-5"). A discrepancy was noted between the student Verbal IQ score ( ) and his Non Verbal IQ score ( ). On academic testing using the Woodcock-Johnson Tests of Achievement III (“W-J III”), the student obtained the following scores (reported as grade equivalents): letter word identification ( ); spelling ( ); and passage comprehension ( ). The student reportedly demonstrated significant While the student demonstrated nearly age appropriate functioning in numerical operations ( ), he displayed more marked delays in applied problems (K.0) (Ex. SD-12 at 3-4).
On March 19, 2010, the CSE convened to develop and IEP for the student for the 2010/11 school year. The CSE recommended that the student receive the majority of his instruction in special class in a specialized (District ) school. The CSE also recommended that the student receive the following related services: specialized transportation; adaptive physical education; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual therapy, three (3) times per week for thirty (30) minutes per session; individual , one (1) time per week for thirty (30) minutes per session; small group , one (1) time per week for thirty (30) minutes per session; and a paraprofessional (Exs. SD-6 at 1-2, 14, 16, SD-7).
On June 14, 2010, the DOE issues a Final Notice of Recommendation (“FNR”) indicating that the student’s special education program would be implemented at (Ex. SD-8).
The CSE reconvened on June 25, 2010 and added individual occupational therapy, two (2) times per week for thirty (30) minutes per session, to the student’s IEP for the 2010/11 school year based on the recommendation of a March 27, 2010 occupational therapy evaluation (Exs. SD-3, SD-4 SD-5).
In a letter dated June 25, 2010, counsel for the student and the parent rejected the DOE’s proposed placement for the student for the 2010/11 school year, i.e., , and requested that the student’s placement be designated as (Ex. SD-13).
In a letter dated July 22, 2010, counsel for the student and the parents informed the CSE of the parent’s rejection of the student’s proposed program and of the parent’s intent to unilaterally place the student at the at public expense for the 2010/11 school year (Ex. P-F).
IV. POSITION OF THE PARTIES
A. The DOE
The DOE offered the student a free appropriate public education for the 2010/11 school year. was an inappropriate and overly restrictive placement for the student. The relevant equities also favor the DOE.
B. The Parent
The DOE denied the student a free appropriate public education for the 2010/11 school year. The recommended program of a special class with a staffing ratio of in a specialized (District ) school is not appropriate to meet to student’s and needs (Ex. PA).
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 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. Appropriateness of Proposed Public Program
I find that the March 19, 2010 IEP, as amended on June 25, 2010, was reasonably calculated to provide the student with meaningful education benefit. See Rowley, 458 U.S. at 192.
Ms. , a school who participated in both CSE meetings, credibly testified that the proposed special class would have provided the student with adequate support to meet his educational needs (R. 45). Ms. testified that the CSE determined the student’s thencurrent academic, social, emotional and health functioning prior it making is program recommendations and fully explained to the parent its rationale for the services called for in the IEP. Given the student’s social/emotional needs, the CSE recommended that a be added to the student’s IEP and developed a ”) for him (R. 37-39, 44; SD-6 at 16-17). Ms testified that the annual goals included in the student’s March 19, 2010 IEP were developed collaboratively and specifically targeted to the student’s educational deficits as recorded in the progress report (R. 23-45; Exs. SD-6, 10).
The CSE subsequently reconvened on June 25, 2010 to review the results of an occupational therapy evaluation. Based on the recommendations contained in that evaluation, the CSE added individual occupational therapy and related annual goals to the student’s IEP (R. 45, 47; Exs. SD-3 at 2, 15-16, SD-4, SD-5).
Mr. , an Assistant Principal at , credibly testified that the student would have been able to work toward completing his annual educational goals and short term instructional objections in the proposed special class. In that class, which Mr. indicated only had four (4) students during the 2010/11 school year, the student would have been suitably grouped for instructional purposes with other students having similar educational needs. Mr. also testified that the student would have all of his mandated related services either from DOE employees or through related service authorizations (“RSAs”) (R. 103-126; Exs. SD-3, SD-6).
Alternatively, while the parent objects to absence of art therapy from the March 2010 and June 2010 IEPs for the student, Ms. explained that art therapy is a therapeutic service akin to (R. 228). Given the CSE’s recommendation of and small for the student, I do not find that the absence of art therapy from his IEPs constituted a denial of FAPE (Exs. SD-3 at 19, SD-6 at 16).
As to the parent’s argument that the proposed placement, i.e., would have been unable to implement all of the student’s related service mandates, I find that argument unpersuasive, given Mr. ’s testimony that the student’s related service mandates would have been fulfilled, either with DOE employees or via RSAs (R. 103-104, 130), see M.S. v. New York City Dept. of Educ., 2010 WL 3377667, at *6-*7 (E.D.N.Y. August 25, 2010); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 10-060 at 11 (SRO September 9, 2010), and speculative, given that the parent rejected the proposed program/placement and the student attended the during the 2010/11 school year (Exs. P-A, P-F), see, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-22 (SRO June 20, 2011).
C. Conclusion
Based on the foregoing evidence in the hearing record, I find that the DOE offered the student a FAPE for the 2010/11 school year. Having determined that the DOE offered the student a FAPE for the 2010/11 school year, it is not necessary to reach the issues of whether the student’s private placement at the was appropriate or whether equitable considerations support the parent's tuition reimbursement claim and the necessary inquiry is at an end. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF
FACT,IT IS
HEREBY ORDERED THAT:
The parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2010/11 school year is DENIED. Dated: February 26, 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 SEPTEMBER 20, 2012
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 6/19/12, 2 pgs.
DEPARTMENT OF EDUCATION
1. NYC DOE Due Process Response, 6/27/12, 4 pgs.
2. NYC DOE Final Notice of Recommendation (FNR), 8/6/12, 1 pg.
3. NYC DOE Individualized Education Program (IEP), 6/25/10, 19 pgs.
4. NYC DOE Committee on Special Education (CSE) Meeting Minutes, 6/25/10, 1
pg.
5. NYC DOE ) Evaluation, 3/27/10, 5 pgs.
6. NYC DOE Individualized Education Program (IEP), 3/19/10, 17 pgs.
7. NYC DOE Committee on Special Education (CSE) Meeting Minutes, 3/19/10, 1
pg.
8. NYC DOE Final Notice of Recommendation (FNR), 6/14/10, 1 pg.
9. Evaluation, 11/8/10, 6 pgs.
10. Interdisciplinary Report of Progress, 12/09, 15 pgs.
11. NYC DOE Classroom Observation, 11/10/09, 2 pgs.
12. NYC DOE Evaluation Report, 3/19/08, 5 pgs.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 25, 2012
PARENT
B. NYC DOE Notice of Recommended Deferred Placement, 6/19/10, 1 pg.
C. Class Schedule, , 1/11, 1 pg.
D. Attendance Record, , 2010/11, 1 pg.
E. Addendum to December 2010 Report of Progress, , 1/11, 5 pgs.
F. Ten Day Notice Letter to , 7/22/10, 1 pg.
G. Interdisciplinary Report of Progress Update, , 5/11, 14 pgs.
H. Enrollment Contract, 2010/11, undated, 5 pgs.
I. Special Education Reports for X352, 2010/11, 2 pgs.
J. Tax Return 2010, 2/4/11, 18 pgs.
K. Interdisciplinary Report of Progress, , 12/10, 13 pgs.
DEPARTMENT OF EDUCATION
13. Letter to , 6/25/10, 3 pgs.
IMPARTIAL HEARING OFFICER
None.
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 11, 2012
PARENT
None.
DEPARTMENT OF EDUCATION
None.
IMPARTIAL HEARING OFFICER
None.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 3, 2012
PARENT
None.
DEPARTMENT OF EDUCATION
None.
IMPARTIAL HEARING OFFICER
None.
POST HEARING SUBMISSIONS
PARENT
None.
DEPARTMENT OF EDUCATION
None.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 7/18/12, 1 pg.
II. Confirmation of Extension, 9/27/12, 1 pg.
III. Confirmation of Extension, 10/11/12, 1 pg.
IV. Confirmation of Extension, 12/3/12, 1 pg.
V. Confirmation of Extension, 12/31/12, 1 pg.
VI. Confirmation of Extension, 1/24/13, 1 pg.
VII. Confirmation of Extension, 2/8/13, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] 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 parent’s 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. 200-201, 295-296, 350-351; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO- V, IHO-VI, IHO-VII).
[3] 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 as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of 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) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.