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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: July 31, 2012
December 10, 2012
December 11, 2012
December 17, 2012
January 28, 2013
April 9, 2013
Actual Record Closed Date: May 20, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2012
ESQ., Attorney — Student
ESQ., Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2012
ESQ., Attorney — Student
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11, 2012
ESQ., Attorney — Student
Parents
Psychologist (via telephone) — Student
Program Director — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17, 2012
ESQ., Attorney — Student
Parents
Teacher (via telephone) — Student
Teacher (via telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2013
ESQ., Attorney — Student
Parents
Preschool (via telephone) — Student
Occupational Therapist (via telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2013
ESQ., Attorney — Student
Parents
Speech Therapist (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 originally requested by the advocates for the student and the parents in a due process complaint notice dated June 20, 2012, and later amended on August 3, 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 2012/13 school year. Reimbursement of the cost of a private neuropsychological evaluation is also sought by the parents in this proceeding (Exs. P-A,
P-C).[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
The original due process complaint was filed on June 20, 2012 (Ex. P-A). See 8 NYCRR §§ 200.5(i)(1), (j)(1). I was appointed by the DOE to hear this matter on June 27, 2012. See 8 NYCRR § 200.5(j)(3)(i). A pendency hearing with the parties was held on July 21, 2012 (R. 3-20). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The parents filed an amended due process complaint on August 3, 2012 (Ex. P-C). See 8 NYCRR § 200.5(i)(7). On August 13, 2012, I rendered an Interim Order on Pendency which directed the DOE to provide the student with certain related services at public expense pending the completion of this proceeding (Ex. IHO-I at 6-7). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). Pre-hearing conferences with the parties were held on October 9, 2012 and November 19, 2012 to clarify the issues, set dates for the hearing, and address subpoena objections. See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were thereafter held on December 10, 2012, December 11, 2012, December 17, 2012, January 28, 2013, and April 9, 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 June 20, 2012 hearing request, the student old and diagnosed with an , i.e., - (Exs. SD-1 at 1, SD-17 at 1, P-A at 2, P-C at 2). For the 2012/13 school year, the student attended in Manhattan (Exs. P-A at 1, P-C at 1, P-F, P-G, P-O). The Commissioner of Education has not approved 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 autism is not in dispute in this hearing (Exs. SD-1 at 1, P-A at 2, P-C at 2). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
In 2009, the student began receiving services through QSAC (Quality Services for the Autistic Community). At a meeting held on July 18, 2011, the student was classified as a preschool student with a disability by the DOE’s Committee (the “CPSE”). He attended special education, therapeutic in . The class utilized sensory integration techniques . The student also received five (5) hours per week of special education itinerant teacher (“SEIT”) services at home; as well as individual therapy, three (3)
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. 54-55, 78-79, 360-361, 528-529, 656-657, 799-
800; Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX). See 34 C.F.R. §
300.515(c); 8 NYCRR § 200.5(j)(5). times per week at school; individual therapy, two (2) times per week at home; individual occupational therapy, three (3) times per week; and individual physical therapy, two (2) times per week. In addition, he attended . The occupational therapist there reported progress. Applied Behavior Analysis (“ABA”) modalities were reportedly successful with the student (Exs. IHO-I at 5-6, SD-5, SD-6 at 1, SD-7, SD-8 at 1, SD-9, SD-10 at 1, SD-11, SD-12 at 1, SD-13, SD-14 at 1, SD-17 at 2-3, P-A at 2, P-B at 1, 22, P-C at 2, P-D).
In an undated Educational Progress Report, Ms. , the student’s special education teacher , noted that on the Preschool Evaluation Scale (of cognition), the student scored more than three (3) standard deviations below the mean. The student was able to match pictures-to-pictures in a field of three, pictures-to-objects in a field of three, and touch objects in various positions. The student was able to following instructions to do an enjoyable action in context and follow instructions to do a simple motor action. The student was able to receptively touch about 125 picture cards and could touch body parts such as his head, mouth and ears. The student’s strongest skill was gross motor imitation using objects (Ex. SD-10 at 1).
Throughout one-to-one discrete trials, the student was and required constant reinforcement . It was very difficult for the student to stay seated for long periods of time so movement breaks were frequently used during the sessions to keep the student motivated to learn. During circle time activities, e.g., stories and songs, the student was kept focused for short periods of time with reinforcers present (Ex. SD-10 at 1-2).
In the area of speech/language development, the student presented in the classroom with significant delays, however, progress was noted. The student (non- and for the 2011/12 school year, he was to communicate . Due to , however, the student was switched to while in the classroom. The student’s and only on occasion would he respond to (Ex. SD-10 at 2).
In the area of , the student presented with delays. He was able to walk and climb stairs, however, due to his lack of body awareness and tendency to drop his body to the floor, he required . He was able to complete of coloring and painting with minimal assistance. While the student enjoyed such as the sand table, shaving cream, finger painting and pay-doh, close adult supervision was required because he had a tendency to put those materials in his mouth (Ex. SD-10 at 2).
In the area of self-help skills, the student required physical assistance to feed himself using both a fork and a spoon. He also . The student required physical . The student and was unaware . He required when . In the area of development, the student and did not . He demonstrated a tendency and required to prevent (Ex. SD10 at 3).
As part of a January 20, 2012 occupational therapy annual review, the student was administered the Peabody Developmental Motor Scales - Second Edition on which he demonstrated . He was functioning standard deviations below the mean for his chronological age. The student in which were described as essential components to the development of classroom-based readiness motor coordination. The student continued to present with delays in necessary to support perceptual fine motor and self-help skill development. The student following holiday recesses, illness and absences. The student appeared to benefit from a sensory diet that provided vestibular and proprioceptive input throughout the day to facilitate , and the ability to organize himself to promote learning and acquisition of age appropriate fine motor and gross motor skills for greater success in school and at home (Ex. SD-8 at 4).
In a January 23, 2012 therapy annual review, it was noted that the student’s attention to required tasks had improved, but remained limited and inconsistent. Expressively, the student used and occasionally, gestures, to express his needs, wants or rejection. The student responded well to PROMPT (Prompts for Restructuring Oral Muscular Phonetic Targets) therapy to improve speech sound production. The student reportedly demonstrated slow and steady progress with his ability to attend to required tasks, play appropriately with objects, , label, imitate sounds, wave to greet, and relate to adults. He did, however, continue to (Ex. SD-14 at 1-2).
In a February 1, 2012 physical therapy annual review, it was noted that the student presented and and safety awareness. While the student had demonstrated improvement in some areas of the gross motor domain, he continued to present with delays. The student would seek out movement experiences but relied on adults to organize those experiences as his safety awareness, body and spatial awareness remained poor. The student was particularly unsafe in the stairwells, as he and backward at unpredictable times and jumped down steps (Ex. SD-12 at 3).
In a February 4, 2013 neuropsychological report, Dr. stated that formal psychological testing of the student had not been possible due to his severe developmental delays. The student presented as nonverbal and extremely dysregulated. In the opinion of Dr. the student’s two greatest problems were lack of even the most basic communication skills and ubiquitous, disorganized attention. Dr. was also concerned about the student’s safety in school as he was oblivious to danger signals generally thought to be instinctive. Dr. described the student’s developmental delays as global, affecting language, socialization, and self-care skills. Dr. recommended, among other things, that the student be educated in self-contained class for students with autism on a twelve (12) month basis with additional one-to-one support because of safety concerns and for help with toilet training (Exs. SD-17 at 8-9, SD-18).
Contained within a February 13, 2012 classroom observation of the student by a school social worker, it was noted that:
[The student] is very limited verbally. He can speak a few words and is not toilet trained. [The student] can use a few single words or some two-word phrases. [The student] can understand some simple requests and is capable of following the directions of simple verbal requests, if he is focused. During the observation, I noticed [the student] had trouble focusing on the current lesson, and there was no interaction with other students. Due to his limitations, [the student] has difficulty with engaging and interacting with others (Exs. SD-5, SD-6 at 2)
In a March 23, 2012 clinical summary, Dr. , a , stated that the student required placement in a school with a small staff-to-teacher ratio that can provide him with individualized attention and support. Dr. further stated that the student’s lack of language and his required an educational setting that can offer him individual attention (Ex. SD-19).
At a meeting held on May 18, 2012, the CSE met to develop and IEP for the student for the 2012/13 school year. The CSE recommended that the student receive the majority of his instruction in a special class in a specialized (District ) school on a twelve month basis; supported by related services of specialized transportation; individual therapy, five (5) times per week for thirty (30) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; parent counseling and training; and a one-to-one health paraprofessional (Exs. SD-1 at 12-13, 15-17, SD-4 at 2-3, P-A at 2, P-C at 3).
In a Final Notice of Recommendation (“FNR”) dated June 19, 2012, the DOE advised the parents that the student’s recommended program would be implemented at 28Q882 located at 90-36 150th Street (Exs. SD-20, P-J at 22)
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. was an inappropriate program for the student. The relevant equities mitigate against a reimbursement/direct payment award. The parents’ claim for reimbursement for an individualized educational evaluation should also be denied as the parent failed to state any disagreement with any of the CSE’s evaluations of the student.
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 CSE’s proposed program for the student was both procedurally and substantively deficient 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 Reimbursement of costs associated with Dr. private evaluation is also warranted.
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).
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. Tuition Reimbursement/Direct Payment
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).
1. Composition of May 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 May 18, 2012 CSE was not properly constituted because it lacked a special education teacher of the child and a regular education teacher of the child (Exs. P-A at 4, P-C at 5).
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 Ms. , a certified special education teacher who provided the student with instruction at , participated in the May 18, 2012 CSE meeting
(R. 491; Exs. SD-1 at 19, SD-4 at 1, SD-10).
The IDEA also requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment. See 20 U.S.C. § 1414(d)(1)(B)(ii); 34 C.F.R § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel." 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d).
Here, although the evidence does not show that a regular education teacher attended the May 18, 2012 CSE meeting, I find that the absence of such a member was permissible because the hearing record does not show that the CSE considered placing the student in a general education classroom for the 2012/13 school year (Exs. SD-1 at 17, SD-4). See 8 NYCRR § 200.3(a)(1)(ii).
2. 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 (Exs. P-A at 3, P-C at 3). 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 service 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).
I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2012/13 school year (Exs. SD-1 at 1-3, SD-4 at 1). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). At the May 18, 2012 meeting, the CSE considered a classroom observation, a social history, occupational therapy progress reports, educational progress reports of the student’s then-current teacher, Ms. Corso, and SEIT, Ms. , physical therapy progress reports, and speech/language therapy progress reports (Exs. SD-5, SD-6, SD-7, SD-8, SD-9, SD-10, SD-11, SD-12, SD-13, SD-14, SD-15, SD-16). The CSE also reviewed and considered Dr. Alter’s February 4, 2012 evaluation and Dr report at the May 18, 2012 meeting (R. 132, 170, 780; Exs. SD-17, SD-18, SD-19). Ms. was present at the May 18, 2012 CSE meeting, participated and gave input regarding the student’s then-current functioning (R. 510-511).
3. Adequacy of IEP Goals
The parents allege that the annual goals developed for the student did not adequately address his particular needs (Exs. P-A at 3, P-C at 4). 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 educational deficits. In his February 4, 2012 evaluation, Dr. stated that the student’s “two greatest problems are lack of even the most basic communication skills and ubiquitous, disorganized attention” (Ex. SD-17 at 8). The student’s IEP for the 2012/13 school year included annual goals in commands, balance and coordination, and negotiating the school environment which were consistent with those educational deficits identified in the student’s evaluations and described what he could reasonably be expected to accomplish within a twelve month period (R. 142; Exs. SD-1 at 1-11). The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (R. 152-153; Ex. SD-1 at 1-11). 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).
4. Functional Behavioral Assessment/Behavioral Intervention Plan
The parents allege that the CSE failed to develop an appropriate functional behavioral assessment (“FBA”) and behavioral intervention plan (“BIP”) for the student (Exs. P-A at 4, P-C at 4).5 Where a student's or the learning of others, the CSE must
5 Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior related to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r). Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypothesis as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and "consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior" when developing, reviewing, and revising an IEP. See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); 8 NYCRR § 200.4(d)(3)(i). The evidence contained in the hearing record demonstrates that the CSE developed an FBA and BIP for the student (R. 161, 179-180, 195-196; Exs. SD-1 at 3, SD-2, SD-3). While the parents asserted at the hearing that they did not receive copies of the CSE’s FBA and BIP for the student, there was no evidence presented that the absence of such notice impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student or 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).
5. 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.
From the credible testimony offered by Dr. , a school psychologist who chaired the May 18, 2012 meeting, 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. The CSE recommended that the student receive the majority of his instruction in a special class setting in a specialized (District ) school (Ex. SD-1 at 12). The CSE also recommended that the student receive the services of an individual health paraprofessional for toileting full-time (Ex. SD-1 at 13). Dr. credibly testified that the proposed special class program would provide the student with the level of attention and support necessary to meet his global services to address the behavior. 8 NYCRR § 200.1 (mmm). delays (R. 156-157; Ex. SD-17). Ms. , who had provided the student with instruction during the 2011/12 school year and participate in the May 18, 2012 meeting, also stated that a special class with a full-time paraprofessional would be appropriate for the student
(R. 542-543).
6. Appropriateness of Proposed Placement
The parents allege that the DOE failed to issue a timely FNR, that they were denied an opportunity to timely visit the proposed placement and that the proposed placement was too large to be appropriate for the student (Exs. P-A at 5, P-C at 6).
Generally, the IDEA requires parental participation in determining the educational placement of a student. See 34 C.F.R. §§ 300.116, 300.327, 300.501(c); 501(b)(1)(i). The Second Circuit has established that “‘educational placement’ refers to the general education program – such as classes, individualized attention and additional services a child will receive – rather than the ‘bricks and mortar’ of the specific school. See T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419-420 (2d Cir. 2009), cert. denied, 130 S. Ct. 3277 (2010); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980); see also A.L. v. New York City Dep’t of Educ., 2011 WL 4001074, at *11 (S.D.N.Y. August 19, 2011); R.K. v. New York City Dep’t of Educ., 2011 WL 1131492, at *15-*17 (E.D.N.Y. Jan. 21, 2011), adopted at, 2011 WL 1131522 (E.D.N.Y. Mar. 28, 2011). The assignment of a particular school, however, is an administrative decision, provided that it is in conformance with the CSE’s educational placement recommendation. See K.L.A. v. Windham Southeast Supervisory Union, 2010 WL 1193082, at *2 (2d Cir. Mar. 30, 2010); A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); Letter to Veazey, 37 IDELR
10 (OSEP 2001).
The evidence contained in the hearing record demonstrates that the DOE issued a timely FNR to the parents on June 19, 2012 indicating that the student’s recommended program would be implemented at (Exs. SD-20, P-C at 6). In a letter dated June 27, 2012, the parent acknowledged receiving the DOE’s June 19, 2012 FNR (Exs. SD-20, P-J at 22).
In addition, although the DOE offered the parent the opportunity to visit the assigned school, neither the IDEA nor State regulations confer upon parents the right to visit a recommended school and classroom. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-026 at 11 (SRO Apr. 10, 2012).[6] Likewise, since neither the IDEA nor State regulations require a school district to maintain a particular classroom opening for a student while the student is enrolled elsewhere in a private school, the DOE was no longer obligated to maintain an opening in the 6:1+1 special class recommended in the student’s IEP after the parent notified the DOE on May 25, 2012 (and again on June 27, 2012) of her intention to unilaterally place the student at . See Application of the New York City Dep’t of Educ., Appeal No. 11015 at 15-16 (SRO Mar. 31, 2011); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-008 (SRO Mar. 7, 2011).
Turning to the parents' allegations that the size of the school building would be inappropriate for the student because it (Ex. P-C at 6), I note that this issue is speculative insofar as the parents did not accept the recommendations of the CSE or the program offered by the district and, furthermore, I note that the hearing record, in its entirety, does not support the conclusion that, had the student attended the assigned school, the district would have deviated from substantial or significant provisions of the student's IEP in a material way thereby precluding the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-07; A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. Mar. 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005).
Having determined that the DOE offered the student a FAPE for the 2012/13 school year, it is not necessary to reach the issues of whether the student’s private placement at the Rebecca School was appropriate or whether equitable considerations support the parent's tuition reimbursement claim. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
C. Independent Educational Evaluation (“IEE”)
The Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducts an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district’s evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
I find that the parents are not entitled to reimbursement of the cost of Dr. Alter’s February 2012 independent neuropsychological evaluation (Exs. SD-17, SD-18). There is no evidence contained in the hearing record that either at the May 18, 2012 CSE meeting or at any other relevant time to parent disagreed with any evaluation conducted by the CSE (Ex. SD-4). See R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-35
(D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent’s claim for an IEE at public expense). Instead, in correspondence to the CSE from January and February of 2012 regarding Dr. evaluation, the parent advised the CSE that she was “reserving the right to seek reimbursement for this evaluation at the Department of Education’s expense (Ex. P-J at 1, 3, 8). I find that the parents’ “reservation of rights” was not reflective of a genuine disagreement with any evaluations commissioned by the CSE which would trigger an obligation by the DOE to either fund the independent evaluation or initiate an impartial due process hearing to demonstrate the appropriateness of its evaluations. Cf. 34 C.F.R. §§ 300.502(b)(2)(i)-(ii).
D. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parent of having secured private related services during the 2012/13 school year (other than those provided via my August 13, 2012 Interim Order on Pendency), 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 (Exs. P-A at 6, P-C at 7), 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.
E. Transportation
The parents request for reimbursement for transportation costs to and from the Rebecca School during the 2012/13 school year is also denied (Ex. P-A at 6, P-C at 7). 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. 01012 (SRO Dec. 19, 2001).
F. Attorneys’ Fees
The parents’ request for attorneys’ fees must be denied (Exs. P-A at 8, P-C at 7).
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 parents’ claims for tuition reimbursement and/or direct payment of the student’s tuition to for the 2012/13 school year is DENIED;
(2) the parents’ claim for reimbursement of transportation for the student to and from for the 2012/13 is DENIED;
(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;
(4) the parents’ claim for reimbursement of the cost of evaluation completed by Dr. in February 2012 is DENIED; and
(5) the parents’ claim for attorneys’ fees is DENIED. Dated: June 6, 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 JULY 31, 2012
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 6/20/12, 7 pgs.
B. Individualized Education Program (IEP), 7/18/11, 23 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 10, 2012
PARENT
C. Amended Impartial Hearing Request/Due Process Complaint Notice, 8/3/12, 8
pgs.
D. HASC Quarterly Progress Report, June & August 2012, 14 pgs.
E. DIR/Floortime & Overview & Summary of Scientific & Public Support, undated, 10 pgs.
F. Student Schedule, , 2012/13 school year, 1 pg.
G. Enrollment Contract, , 2012/13 school year, 6 pgs.
H. Check #1576, 5/24/12, 1 pg.
I. 2011 Tax Return & Affidavit, 4/3/12, 3 pgs.
J. Correspondence, various dates, 24 pgs.
K. Dr. Report & Proof of Payment, 11/11-1/12, 4 pgs.
L. Dr. Payment Receipt & Proof of Payment, 5/11/12, 2 pgs.
M. Due Process Response, 8/15/12, 4 pgs.
N. [Reserved]
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 5/18/12, 19 pgs.
2. Functional Behavioral Assessment (FBA), 4/18/12, 2 pgs.
3. Behavioral Intervention Plan (BIP), 4/18/12, 1 pg.
4. CSE Minutes, 5/18/12, 3 pgs.
5. Classroom Observation, 2/13/12, 1 pg.
6. Social History, 2/29/12, 2 pgs.
7. Quarterly Progress Report, 4/3/12, 2 pgs.
8. Occupational Therapy Annual Review, 1/20/12, 4 pgs.
9. Quarterly Progress Report, 4/16/12, 2 pgs.
10. Educational Progress Report, 2011/12, 4 pgs.
11. Quarterly Progress Report, 4/18/12, 1 pg.
12. Physical Therapy Annual Review, 2/1/12, 3 pgs.
13. Quarterly Progress Report, 4/1/12, 1 pg.
14. Progress Report, 1/23/12, 2 pgs.
15. All Services for Kids, Inc., Related Service (S/L) Student Progress Report, undated, 1 pg.
16. All Services for Kids, Inc., Related Service (SEIT) Student Progress Report, undated, 2 pgs.
17. Report, 2/4/12, 10 pgs.
18. Letter from Dr. , 4/19/12, 1 pg.
19. Pediatric Neurology Report, 3/23/12, 1 pg.
20. Final Notice of Recommendation (FNR), 6/19/12, 1 pg.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 8/13/12, 8 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 11, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 17, 2012
PARENT
O. Progress Report, , 12/12, 10 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 28, 2013
PARENT
P. Student Attendance Record, Summer 2012, 1 pg.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 9, 2013
PARENT
Q. Tuition Check, 2/26/13, 1 pg.
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
II. Confirmation of Extension, 10/9/12, 1 pg.
III. Confirmation of Extension, 11/13/12, 1 pg.
IV. Confirmation of Extension, 12/11/12, 1 pg.
V. Confirmation of Extension, 12/17/12, 1 pg.
VI. Confirmation of Extension, 1/28/13, 1 pg.
VII. Confirmation of Extension, 3/15/13, 1 pg.
VIII. Confirmation of Extension, 4/10/13, 1 pg.
IX. Confirmation of Extension, 5/17/13, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism 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.
[6] The U.S. Department of Education’s Office of Special Education (OSEP) has opined that the IDEA does not provide a general entitlement to parent of student with disabilities to observe their children in any current classroom or proposed educational placement. See Letter to Mamas, 42 IDELR 10 (OSEP 2004). OSEP is the agency charged with the principal responsibility for administering the IDEA. See 20 U.S.C. § 1402(a). Substantial deference must be given to a federal agency’s interpretation of its own regulations; the interpretation must be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see also Honig, 484 U.S. at 325 n.8.