New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 3, 2013

May 9, 201

June 12, 2013

July 11, 2013

Actual Record Closed Date: December 5, 2013

Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2013

Attorney — Student

Attorney — Student

Attorney — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2013

Attorney — Student

Attorney — Student

Parents

Teacher (via telephone) — Student

Teacher (via telephone) — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2013

ND, Attorney — Student

Attorney — Student

of School (via telephone) — Student

Teacher (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2013

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

On February 14, 2013, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” seeking an appropriate education placement from the New York City Department of Education (“DOE”) for the 2012-2013 school year. Specifically, the parent seeks tuition reimbursement for unilateral placement at the under Florence v. Carter.

As more fully discussed below, I find that (a) the DOE met its burden in demonstrating the student was offered a free appropriate public education (“FAPE”) for the 2012-2013 school year; and that (b) the parents are not entitled to an award of tuition reimbursement for the costs of their unilateral placement.

I. BACKGROUND

The DOE presented its documentary evidence and testimony supporting its casein-chief on May 3, 2013. The parents likewise presented her case on May 9, June12, and July 11, 2013. A full list of hearing participants precedes this decision; a list of exhibits ^[1] accepted into the record follows.

Regarding the issues raised in the instant hearing, I have limited my analysis to those issues raised in the parent’s due process complaint. The attorney for the DOE routinely and strenuously objected to any expansion of the issues in this hearing. The IDEA provides that the party requesting a due process hearing “shall not be allowed to raise issues at the due process hearing that were not raised in the notice . . . unless the other party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B).

II. STANDARD

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. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). The Second Circuit stressed that “courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012). In light of the Second Circuit’s decision, I have not considered whether the proposed placement could implement the challenged IEP. See Tr. 8-9. In that the student did not attend the placement, the parent’s challenges to the proposed placement contained in her demand are speculative. Therefore, there is no issue for me to determine regarding the placement in and of itself, other than whether a placement recommendation was made for the 2012-2013 school year.

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). 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). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). 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'" Walczak, 142 F.3d at 130. 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). The student's recommended program must also be provided in the least restrictive environment (“LRE”). 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); see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

Not all procedural errors invalidate an IEP under the IDEA. See 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 decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

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 Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71. "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148.

A private school placement must be "proper under the Act." Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This has been interpreted to mean that the private school must have offered an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 and 115 (2d Cir. 2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" Frank G., 459 F.3d at 364.

III. PRONG I

FAPE, at its most basic level, stands for the idea that a child’s individual needs are accounted for when constructing a special education program. The program addresses the child, not the

The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or

FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. 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. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982).

The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

a) CSE Membership

The parent argues that the CSE was not properly staffed by failing to include participating teachers who would likely be able to implement the recommendations of the committee. See D-7 at 1. The IDEA 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. 20 U.S.C. § 1414(d)(1)(B)(ii); see 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 I find that the DOE was not required to ensure the participation of a regular education teacher. A regular education teacher of the student is not required when there was a reasonable likelihood that the student would have been assigned to such a teacher, See 34 C.F.R. § 300.321(a)(2); 8 NYCRR 200.3(a)(1)(ii); W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); see also Application of a Student with a Disability, Appeal No. 11-025. In instance, the team did not consider a program for the student in a community school setting, much less a program including non-disabled peers. See D-1 at pgs. 12-13.

The parent argues the special education teacher attending CSE would not have been the teacher implementing the IEP, and therefore the team was invalidly composed. The IDEA requires a CSE to include teacher of the student, or where appropriate, not less than one provider of the student. 20 U.S.C. § 1414(d)(1)(B)(ii-iii); see 34 C.F.R. § 300.321(a)(2-3); 8 NYCRR 200.3(a)(1)(ii-iii). The Official Analysis of Comments to the federal regulations indicate that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP. IEP Team, 71 Fed. Reg. 46670 (Aug. 14, 2006).

Therefore I find that the CSE’s failure to ensure the attendance of a teacher to be the student’s teacher implementing the IEP does not rise to the level of a FAPE violation, nor prevented the parent’s participation in the IEP drafting process. See App. of NYC Dep’t. of Educ., Appeal No. 11-040.

While the parent does not expressly plead that the absence of a general education teacher invalidates the composition of the committee (see D-7), I would not find such an absence invalidates the CSE’s recommendation here. There is no testimony in this record that the student was ever a candidate for a general education curriculum. Therefore I can identify no reason to require the attendance of a general education teacher.

Overall, I find that the DOE did not deny the student FAPE in its CSE composition.

I find that in this instance that the CSE considered the parent’s concerns but recommended something different than what the parent sought. I further find that such conduct does not rise to the level of a FAPE violation. Here, the CSE offered the student a free and appropriate public education after considering her present levels of performance and unique needs.

b) Placement Recommendation

I find that the parent has not raised any triable issue concerning the implementation of the IEP at issue in this matter, nor has she testified to any allegation that the placement would have been unable to implement the IEP. Whether the placement is appropriate is not the driving question under R.E. and its progeny when the student has not attended the offered program. The question is whether the placement can implement the IEP.

In the parent’s closing, it was argued that Federal District court case of D.C., o/b/o E.B. v. New York City Dept. of Ed., controlled. There, the court raised concerns that: “[t]he information a parent can glean from [the FNR and a visit to the placement] creates considerable reliance interests because the parent must decide, based solely on this information, whether to take the financial risk of unilateral placement… Under the approach advocated by the Department, the Department could propose a placement that was not prepared to implement the IEP, leading a parent to justifiably place the child unilaterally… [then] defeat the parent’s subsequent reimbursement claim by introducing evidence that the proposed placement hypothetically could have effected changes to implement the IEP. This would result in the same ‘bait and switch’ that the Court of Appeals condemned in R.E.” D.C., 1:2012-cv-01394, slip op., S.D.N.Y., March 26, 2013.

Here the DOE never argued that “the proposed placement hypothetically could have effected changes to implement the IEP,” but that the placement recommended in its FNR could implement the IEP as written. Therefore, the DOE has not run afoul of the prohibitions articulated in R.E. and D.C.

Overall, I am satisfied that the DOE has met its burden in demonstrating that B.W.’s IEP as developed by the CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.

IV. PRONG II AND EQUITIES

Having found that the DOE met its burden in demonstrating the appropriateness of its 2012-2013 program recommendation, the question of the parent’s unilateral placement is moot.

Typically, I would not address equitable considerations once finding the DOE met its burden to offer the student FAPE. In this matter however, I am troubled by the parent’s testimony and her interpretation of what certain documents meant. Generally, equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. I am empowered with the authority to reduce or deny outright any claim for tuition reimbursement upon a finding or unreasonableness on the part of the parent.

20 U.S.C. § 1412(a)(10)(c)(iii)(III). Any and all factors may be considered in equity in fashioning relief. Carter, at 16.

Now, therefore, it is hereby

ORDERED that the claims contained in the parent’s demand for due process are dismissed with prejudice. Dated: December 17, 2013

____________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer TMM: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

PARENT

A omit --- --- B Parent Letter to CSE 9/13/2012 1 pg. C Affidavit from 2/27/2013 1 pg. D Parent’s Tax Return 4/8/2012 2 pgs. E Enrollment Contract 4/20/2012 2 pgs. F Class Schedule 2012-13 1 pg. G Report 2012-13 22 pgs. H Attendance Record 2012-13 1 pg.

DEPARTMENT OF EDUCATION. 1 Individualized Education Plan 1/19/2012 15 pgs. 2 CSE Review Minutes 1/19/2012 6 pgs. 3 10/26/2011 1 pg. 4 Dec. 2011 14 pgs. 5 10/15/2011 2 pgs. 6 Final Notice of Recommendation 2/10/2012 1 pg. 7 Due Process Complaint 10/3/2012 2 pg. 8 Due Process Response 3/1/2012 4 pgs. 9 Amended Due Process 3/5/2012 4 pgs. 10 Impartial Hearing Decision for 2011-2012 Sch. Yr. 1/16/2013 18 pgs. 11 and 11/9/2012 4 pgs.

Diagnostic Examination) 12 Nov. 2012 19 pgs.

IMPARTIAL HEARING OFFICER

I Subpoena 4/30/2013 2 pgs.

Footnotes

[1] References to the transcript are preceded by a “Tr.” Followed by the page number. District exhibits are denoted by the prefix “D-” and parent exhibits are denoted by the prefix “P-”. The DEO requested that the parties’ post-hearing briefs be included as part of the record. On consideration, I decline to do so. Their written closings are not evidence. And while I have considered the parties’ closing briefs, my main concern is reviewing the exhibits and transcripts.