NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 12, 2013
May 23, 2013
Actual Record Closed Date: July 17, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2013
ESQ., Attorney — Student
Mother — Student
Father — Student
ESQ., Attorney — DOE
Psychologist (via telephone) — DOE
Placement Officer (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2013
ESQ., Attorney — Student
Mother — Student
Father — Student
DR., Head of School (via telephone) — Student
Humanities Teacher, (via telephone) — Student
ESQ., Attorney — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated January 11, 2013. 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 Manhattan for the 2012/13 school year (Ex. SD-1).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l). New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
Following the filing of the January 11, 2013 due process complaint, I was appointed by the DOE to hear this matter on January 14, 2013 (Ex. SD-1). See 8 NYCRR §§ 200.5(i)(1), (j)(1), (j)(3)(i). Hearings in this matter were thereafter held on March 11, 2013 and May 23, 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 January 11, 2013 amended hearing request, the student was (Exs. SD-1 at 1, SD-4 at 1, SD-5 at 1, SD-6 at 2). For the 2012/13 school year, the student attended the sixth grade at the (Exs. SD-1 at 3-4, SD-13, SD-14, P-I, P-J, 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 current eligibility for special education and related services as a student with a is not in dispute in this hearing (Exs. SD-1, SD-2 at 1). See
34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).[3]
The student was reportedly evaluated by the DOE in July 2007 (when he was six years old). Test results indicated Low Average Range cognitive abilities with strengths in verbal reasoning and relative weaknesses in speed of visual processing. He was described as a distractible, sociable youngster who required a great deal of encouragement and support in his classroom setting. Academic skills were reported to be within age expected levels for math but about one year delayed in reading (Ex. SD-4 at 3).
During the 2010/11 school year, the student’s fourth grade, he attended a special class program in a community school ( ) and received related services of physical therapy, occupational therapy, and speech/language therapy. He was reported to have made progress in his academic and socialization skills that school year, although some school reports indicated that he continued (Ex. SD-4 at 1).
On July 28, 2010, the student participated in a . On the Stanford-Binet Intelligence Scale - 5th Edition, the student achieved a test composite score , which fell within the . His verbal reasoning skills were also measured to be within range with a standard score When the student’s visual perception skills were assessed, he achieved a score of , which was considered to be Borderline Deficit. The significant discrepancy between his verbal and was deemed indicative of perceptual deficits that would strongly impact his learning style (Exs. SD-3 at 1, SD-4 at 3).
As part of the same evaluation, the student was administered the WoodcockJohnson III Tests of Achievement to assess reading, writing, math and academic fluency. Academic skills were significantly delayed in all areas measured. The student “is basically a non-reader.” His Broad Reading scores were measured at the equivalency. Although he was capable of for extensions of the case compliance date were granted (R. 114-115, 266; 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). making sound-symbol associations, he had difficulty putting the sounds together to make words. The student’s math skills, which measured within the “limited” range at grade equivalency , required remediation at the most basic levels of addition and subtraction. Spelling (K.8 G.E.) and written communication (< K.2 G.E. ) skills also measured well below age and grade level expectations. Language and oral comprehension skills, in contrast, were areas of strength for the student. He was able to express his thoughts and ideas more appropriately through verbal means (Exs. SD-3 at 1, SD-4 at 4-7).
In September of 2010, the parents secured a private neurocognitive evaluation of the student. The results of the evaluation disclosed that the student displayed good visual memory but otherwise possessed which adversely affected his ability to function. His overall intellectual ability, as measured by the WISC-IV, was below average (standard score 68). He , . As measured by the WIAT, the student’s reading comprehension (standard score 67) was three-to-four years below grade level, as was his spelling (standard score 67). The student’s math functioning (standard score 74) was also two years below grade level. The private evaluator recommended “therapeutic, multisensory intervention” for the student to address these needs (Exs. SD-3 at 1, SD-5 at 2, 4).
During the 2011/12 school year, the parents unilaterally enrolled the student at the and obtained tuition payments from the DOE (Ex. SD-1 at 4). On April 21, 2012, the parents submitted an enrollment package to for the student’s attendance at that school for the 2012/13 school year (Ex. SD-13). On May 16, 2012, CSE invited the parents to attend a reevaluation IEP meeting scheduled for May 30, 2012 (Ex. SD-2).
At a meeting held on May 30, 2013, the CSE recommended for the 2012/13 school year (the student’s ) that the student receive the majority of his instruction in a 12:1+1 special class in a specialized (District ) school. The CSE also recommended that the student receive related services of: special education transportation, small group (3:1) therapy, two (2) times per week for forty (40) minutes per session; individual physical therapy, two (2) times per week for forty (40) minutes per session; small group (2:1) occupational therapy, two (2) times per week for forty (40) minutes per session; and group ( ) , one (1) time per week (Exs. SD-1 at 2, SD-3 at 10, 14-15, SD-10 at 2-3).
On July 2, 2012, the parents received a Final Notice of Recommendation from the DOE indicating that the student’s recommended program would be implemented at , located at (Exs. SD-1 at 2, SD-11).
On July 13, 2012, counsel for the parents advised the CSE of the parents’ intent to make a unilateral placement of the student at the for the 2012/13 school year at public expense (Ex. P-E). In August or September of 2012, the parents signed a contract with the for the student’s enrollment there for the 2012/13 school year (R. 261; Ex. P-K).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The parents’ objections related to the functional grouping of the student in the proposed special class are speculative. was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award as the parents do not have a legally binding contract with the and never meaningfully considered the student’s placement in a public program
(R. 35-37; Ex. IHO-VII).
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement at the for the 2012/13 school year. The CSE’s proposed program for the student was deficient and served to deny the student a free appropriate public education. All of the other students in the proposed special class had different individual needs than the student who is the subject of this hearing. The DOE also failed to provide this student with recommended summer services. appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s tuition to the Cooke Center. The parents’ claim for special education transportation was withdrawn (R. 16-21; Ex. IHO-VI).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8
NYCRR
§ 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2);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 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. Scope of Impartial Hearing
As an initial matter, I will address the parents’ request that the issues considered at this hearing be expanded to include the student’s eligibility for, and/or provision of, extended school year (or twelve (12) month) services (R. 17-21).[5]
A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees, see 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.508(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five (5) days prior to the impartial hearing, see 20 U.S.C. § 1415(c)(2)(E)(i)(II); 34 C.F.R. § 300.508(d)(3)(ii); 8 NYCRR § 200.5(i)(7)(b); M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *12-*13 (S.D.N.Y. Dec. 16, 2011); C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *13 (S.D.N.Y. Sept. 22, 2011); R.B. v. Dep't of Educ., 2011 WL 4375694, at *6 (S.D.N.Y. Sept. 16, 2011); W.M. v. Lakeland Cent. Sch. Dist., 2011 WL 1044269, at *8 (S.D.N.Y. Mar. 10, 2011).
The party requesting an impartial hearing identifies the potential range of issues in the first instance by sufficiently setting them forth in the due process complaint. See Application of the New York City Dep’t of Educ., Appeal No. 12-010 at 8 (SRO Apr. 23, 2012). The range of issues to be decided at the impartial hearing is also subject to the authority of the IHO, who may consistent with basic principles of due process conduct a prehearing conference (i.e., notice and an opportunity to be heard) for the purpose of narrowing and clarifying the issues that he or she will receive evidence on and decide in an impartial hearing. See 8 NYCRR 200.5(j)(3)(xi). After the issues that must be resolved have been identified the Education Law assigns the burden proof on the issues to be decided during the hearing to the school district, except as to those matters related to the unilateral placement of the student where FAPE is at issue. See N.Y. Educ. Law § 4404(1)(c). There is a rebuttable presumption in State regulations that each side will have up to one day to present its case on the disputed issues, see 8 NYCRR200.5(j)(3)(xiii), and there is no plenary requirement that a district must prove any and all matters generally related to its obligation to develop special education programming for a student with a disability regardless of the allegations, see Application of the New York City Dep’t of Educ., Appeal No. 12-010 at 8 (SRO Apr. 23, 2012).[6]
In this case, I find that the parents’ due process complaint notice may not be reasonably read as asserting a claim on the student’s eligibility for, and/or implementation of, extended school year (or twelve (12) month) services (Ex. SD-1). While at the hearing I reserved decision on the parents’ application and permitted some testimony relating to the DOE’s analysis of the student’s eligibility for extended school year (or twelve (12) month) services, the DOE did not "open the door" by agreeing to expand the scope of the impartial hearing and the DOE timely objected to expanding the scope of the hearing (R. 17-21). Thus, I will confine my determination to the issues raised in the parents’ due process complaint notice and not consider whether the DOE's recommendations for the student concerning extended school year (or twelve (12) month) services constituted a denial of a FAPE. See 20 U.S.C. §§ 1415(c)(2), (f)(3)(B); 34 C.F.R. §§ 300.508(b), (d)(3); 300.511(d); 8 NYCRR §§200.5(i)(1)(iv), (i)(7); (j)(1)(ii); B.P. v. New York City Dep't of Educ., 2012 WL 33984, at *4-*5 (E.D.N.Y. Jan. 6, 2012).
C. Substantive Appropriateness of Proposed Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
1. Functional Grouping in Assigned Classroom
Turning to the parents’ claims regarding the implementation of the IEP, the parents allege that the functional grouping of students in the assigned classroom was inappropriate for the student (Ex. SD-1 at 5).
As a threshold matter, I do not find that that the parents’ objections on the functional grouping of the proposed class to be speculative. While parents are not required to try out the school district's proposed program, see Forest Grove, 129 S. Ct. at 2496, I note that neither the IDEA nor State regulations require a district to establish the manner in which a student will be grouped on his or her IEP, as it would be neither practical nor appropriate. The Second Circuit has also determined that, unlike an IEP, school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194. The IDEA and State regulations provide parents with the opportunity to offer input in the development of a student's IEP, but they do not permit parents to direct through veto a school district's efforts to implement each student's IEP by, for instance, personally viewing and approving the classroom or classmates of their own choosing. See T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010).
While school districts are not required to establish that a seat was available for a student or that a student would have been grouped appropriately upon the implementation of his/her IEP in the proposed classroom where parents reject an IEP prior to the time that the school district became obligated to implement it, see, e.g., Application of the New York City Dep’t of Educ., Appeal No. 12-062 at 12 (SRO June 18, 2012); Application of the New York City Dep’t of Educ., Appeal No. 12-051 at 12 (SRO June 8, 2012); Application of the New York City Dep’t of Educ., Appeal No. 12-010 at 17-18 (SRO April 23, 2012), in this case, the functional grouping of the proposed 12:1+1 special class is not speculative because the parents rejected the May 2012 IEP and enrolled the student at the after the time that the DOE became obligated to implement the student's IEP. The May 30, 2012 IEP was to be implemented on July 1, 2012 (R. 61-62, 70; Exs. SD-3 at 1, SD-
10 at 2). On July 2, 2012, the parents received a Final Notice of Recommendation from the DOE indicating that the student’s recommended program would be implemented at in Staten Island (Exs. SD-1 at 2, SD-11). On July 13, 2012, counsel for the parents advised the CSE of the parents’ rejection of the proposed program and intent to make a unilateral placement of the student at the Cooke Center for the 2012/13 school year at public expense (Ex. P-E). In August or September of 2012, the parents signed a contract with the Cooke Center for the student’s enrollment there for the 2012/13 school year (R. 261; Ex. P-K).
With regard to grouping, State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs. See 8 NYCRR §§ 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3); see also Walczak, 142 F.3d at 133 (approving an IEP that placed a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom. See 8 NYCRR § 200.6(h)(2); see also 8 NYCRR §§ 200.1(ww)(3)(i)(a)-(d). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. See 8 NYCRR §§ 200.6(a)(3)(ii), (iii). Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class. See 8 NYCRR § 200.6(a)(3)(iv). State regulations also require that a "district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years shall, . . . provide the [CSE] and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics, . . . in the class, by November 1st of each year." 8 NYCRR § 200.6(h)(7). However, State regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three years. See, e.g., Application of the Dep't of Educ., Appeal No. 08-018; Application of the Bd. of Educ., Appeal No. 06010; Application of a Child with a Disability, Appeal No. 01-073. In reviewing evidence of the functional grouping of the proposed 12:1+1 special class, I must be mindful of the Second Circuit’s rule that retrospective “testimony many not support modification that is materially different from the IEP,” see R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 185 (2d Cir. 2012), which has subsequently been applied to the capability of the proposed placement to implement an IEP, see D.C. v. New York City Dep’t of Educ., 12 Civ. 1394, slip op., at 37 (S.D.N.Y. March 25, 2013).
Had the student attended the DOE’s recommended program, the evidence in the hearing record demonstrates that the special class at the assigned school would have provided the student with suitable grouping for instructional purposes. At the time of the May 2012 CSE, Mr. (the school psychologist and chair of the meeting) stated that the committee understood the student to possess “ ” for an aging into (R. 52; Ex. SD-1 at 1-2). The May 30, 2012 IEP and the February 14, 2012 Summer School Recommendation reflect that the student’s reading decoding and comprehension skills were at the first grade level and that his math skills were at the second grade level (Exs. SD-3 at 1, SD-9 at 1-2). In recommending a special class program for the student, Mr. stated that CSE considered that the student had received instruction in a 12:1 class with reported success at during the 2011/12 school year (R. 53-54; Ex. SD-7 at 7-8). A class profile generated at the same time of the DOE’s July 2, 2012 FNR reflects that the other students in the proposed special class ranged in age from twelve to thirteen, were functioning in reading between the , and were functioning in math between the mid second to (R. 86; Ex. SD-11, P-N).
Alternatively, the parents object to the fact that all of the other students in the proposed special class were classified as having an ,” which Mr. stated means difficulty with peer and adult relationships, depressed mood and behavioral disturbance
(R. 65-66; Ex. P-N). In the July 28, 2010 , the DOE school psychologist noted that “there [was] no evidence of ” in the student (Ex. SD-4 at 6). Although the May 2012 CSE recognized that the student did not , there is no dispute that he required group school-based counseling support on relationships with peers (R. 66-67; Exs. SD-3 at 1-2, 10, SD-10 at 2). The May 30, 2012 IEP and Ms. notes of the May 2012 CSE meeting reflect that the committee specifically rejected a smaller special class setting for the student given the likelihood that such a setting would functionally group the student with other students with (Exs. SD-3 at 16, SD-10 at 3). Based on the information described above, which was available to the parties at the time the recommended program was to be implemented, I decline to find that the special class was inappropriate solely because the other enrolled students had classifications different from the student who is the subject of this hearing. See Walczak, 142 F.3d at 123; E.C. v. Board of Educ. of the City Sch. Dist. of New Rochelle, 11 Civ. 9429, 2013 WL 1091321, *24 (S.D.N.Y. Mar. 15, 2013); E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 424 (S.D.N.Y. 2010), aff'd, 487 F. App'x 619 (2d Cir. 2012).[7]
2. Availability of Mandated Related Services in Proposed Program The parents allege that the proposed program would not have been able to provide IEP mandated occupational or physical therapy to the student (Ex. SD-1 at 6). School districts have obligations under the IDEA and Article 89 of the Education Law to deliver the services necessary to ensure that students with disabilities receive FAPE. Where a school district is unable to provide the related services on a student’s IEP in a timely manner through its employees because of shortages of qualified staff or the need to deliver a related service that requires specialized expertise not available from school district employees, the board of education has authority under Education Law §§1604(30), 1709(33), 2503(3), 2554(15)(a) and 4402(2)(b) to enter into contracts with qualified individuals as employees or independent contractors to provide those related services. See Application of the New York City Dep’t of Educ., Appeal No. 10-104 at 10 (SRO Dec. 20, 2010) quoting John P. King & Erin M. O’Grady-Parent, Q and A related to Contracts for Instruction, Question 5 (NYSED June 2, 2010).
The evidence entered into the hearing record does not support the conclusion that the DOE would have deviated from the student's IEP in a material or substantial way. See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. Mar. 23, 2010); T.L. v. Dep't of Educ. of City of New York, 2012 WL 1107652, at *14 (E.D.N.Y. Mar. 30, 2012); D.D.-
S. v. Southold U.F.S.D., 2011 WL 3919040, at *13 (E.D.N.Y. Sept. 2, 2011); A.L. v. Dep't of Educ., 812 F. Supp.2d 492, 503 (S.D.N.Y. 2011). The May 30, 2012 IEP called for the student to receive related services of: special education transportation, small group ( ) speech/language therapy, two (2) times per week for forty (40) minutes per session; individual physical therapy, two (2) times per week for forty (40) minutes per session; small group ( ) occupational therapy, two (2) times per week for forty (40) minutes per session; and group ( ) counseling, one (1) time per week (Exs. SD-1 at 2, SD-3 at 10,
14-15, SD-10 at 2-3). The student’s mother testified at the hearing that she was told during her October 2, 2012 site visit that the program had a speech/language therapist on staff at the school and that occupational and physical therapy was provided to students via independent contractors (R. 248).
Having determined that the DOE offered the student a FAPE for the 2012/13 school year, it is not necessary to reach the issues of whether the student’s private placement at the 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.
D. Attorneys’ Fees
The parent’s request for attorneys’ fees must be denied (Exs. IHO-VI at 23, SD-1 at 4). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to such costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); see also Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). Since only a court can determine who is a prevailing party entitled to attorneys’ fees, I conclude that I lack subject matter jurisdiction over this aspect of the parent’s claim and dismiss it accordingly.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2012/13 school year is DENIED; and
(2) the parent’s claim for attorneys’ fees is DENIED. Dated: July 30, 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 MARCH 12, 2013
PARENT
A. [Reserved]
B. CCP 9 Minutes of CSE Meeting, 5/30/12, 1 pg.
C. [Reserved]
D. [Reserved]
E. Letter to , 7/13/12, 1 pg. (double sided)
F. [Reserved]
G. [Reserved]
H. [Reserved]
I. Progress Report 2012/13, 11/2012, 8 pgs. (double sided)
J. Progress Report 2012/13, 3/2013, 10 pgs. (double sided)
K. School Enrollment Contract 2012/13, 1 pg. (double sided)
L. Adaptive Behavior Assessment System - Second Edition Interpretive Report,
10/26/12, 8 pgs. (double sided)
M. Class Schedule, 2012/13, 1 pg.
N. DOE Class Profile, 2012/13, 1 pg.
DEPARTMENT OF EDUCATION
1. Due Process Complaint Notice/Impartial Hearing Request, 1/11/13, 7 pgs.
2. IEP Meeting Notice, 5/16/12, 3 pgs.
3. Individualized Education Program (IEP), 5/30/12, 17 pgs.
4. Evaluation, 7/28/10, 9 pgs.
5. Evaluation, 9/19/10, 4 pgs.
6. Social History Update, 7/28/10, 2 pgs.
7. School Progress Report 2011/12, 11/2011, 15 pgs.
8. School Progress Report 2011/12, 6/2012, 25 pgs.
9. Supplemental Documentation Report for Summer School Recommendation,
2/14/12, 2 pgs.
10. IEP Annual Review, , 5/30/12, 3 pgs.
11. Final Notice of Recommendation (FNR), 7/2/12, 1 pg.
12. FNR Placement Site Report, , 10/2/12, 3 pgs.
13. 2012/13 Enrollment Package, 4/21/12, 4 pgs.
14. 2012/13 Attendance Detail, , 3/12/13, 1 pg.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 23, 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, 3/14/13, 1 pg.
II. Confirmation of Extension, 4/22/13, 1 pg.
III. Confirmation of Extension, 5/26/13, 1 pg.
IV. Confirmation of Extension, 6/24/13, 1 pg.
V. Confirmation of Extension, 7/17/13, 1 pg.
VI. Parents’ Closing Brief, undated, 23 pgs.
VII. DOE’s Closing Brief, undated, 21 pgs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests
[3] Speech or language impairment means , such as , a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[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] Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR § 200.1(eee).
[6] Discussing the sufficiency requirements prior to the Supreme Court's decision in Schaffer v. Weast, 546 US 49 (2005) at a time when the burden of proof under the IDEA was typically placed on school districts, the Senate Committee indicated that Congress did not intend to "forc[e] the school to prepare for any and every issue that could be possibly raised against it" by merely alleging that a student was denied a FAPE. See Individuals with Disabilities Education Act Senate Report No. 108-185 at p. 35.
[7] Consistent with the Second Circuit’s holding in R.E. v. New York City Dep’t of Educ., 694 F.3d at 186, prohibiting consideration of retrospective evidence, I do not find that Ms. testimony on the possibility that the class profile could change, or the parent’s testimony of her October 2, 2012 site visit, to be probative to the inquiry on the appropriateness of the functional grouping of the 12:1+1 special class at the time the IEP was to be implemented (R. 88, 108, 225, 227-234; Ex. SD-12).