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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 28, 2014
June 11, 2014
Actual Record Closed Date: November 24, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 28, 2014
For the Student:
Attorney
For the Department of Education:
CSE District Representative
IEP Witness
Interpreter
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 11, 2014
For the Student:
Attorney
parent
Program Director, (via telephone)
School Psychologist, (Via Telephone)
For the Department of Education:
CSE District Representative
Assistant Principal for
Instructional Support Services (Via Telephone)
INTRODUCTION
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a reimbursement case.
PARENT’S POSITION
The Parent alleges that the District denied the Student a Free Appropriate Public Education (FAPE) for the 2013-2014 school year. (Ex. A-1) The Parent argues generally that the recommended program could not be implemented for lack of a special education teacher; the promotional criteria in the April 17, 2013 IEP (Ex. B) were inappropriate and not modified to meet the Student’s needs; written notice was not received within enough time for the Parents to visit the recommended placement; the Parents had no choice but unilaterally place the Student at the Private School; and that the Private School is an appropriate placement. (Ex. A-1-2) The Parent is seeking tuition reimbursement for the 2013-2014 school year as well as transportation and related services.
DISTRICT’S POSITION
The District’s position is that a duly constituted Committee on Special Education (CSE) team met on April 17, 2013. The District contends that the goals noted in the April 17, 2013 IEP (Ex. B) were appropriate and calculated to meet the Student’s needs. (Ex. IHO 1-8). The District maintains that everyone present at that meeting had the opportunity to participate in the development of the IEP, and the recommendations therein are appropriate. The District argues that reports from the Private School indicate that it is not an appropriate placement for the Student. (Ex. 3; 5; IHO 1-8-10)
OVERVIEW
For the reasons set forth herein, I find that the Parent’s claim regarding receipt of notice is substantiated by the record. This, together with additional oversights attributable to the DOE, indicates that the Student was not provided a proper, free appropriate public education (“FAPE”). I find also that the Parent met her burden of proof with respect to showing the appropriateness of the chosen placement. However, I find that the Parent unnecessarily delayed her notice to the District that she was rejecting the recommended placement. This gave the Parent a procedural advantage, to the disadvantage of the District. Accordingly, the Parent’s award is ultimately reduced by
ALLEGED VIOLATIONS
In the Amended Complaint Notice dated February 12, 2014, the Parent alleges the following violations:
1. That she was limited in her ability to participate in the IEP meeting because the goals were not explained to her and they were developed without her input;
2. A special education teacher was not present at the April 17, 2013 IEP meeting;
3. The teacher from the Student’s school participated by phone, provided minimal input, and did not participate the entire duration of the meeting;
4. The promotional criteria for the Student were inappropriate because they were not modified to meet his needs;
5. The Student’s levels on the IEP are stated incorrectly as they are below the assessment levels of the - test;
6. The CSE provided the Parent with a written notice of placement dated June 19, 2013, which she received too late to schedule a visit to the school before the end of the 2012-2013 school year. (Ex. A)
STUDENT HISTORY
The Student’s initial IEP was created when he was in where his were first observed. (Tr. pp. 130). The Student repeated (Id. at 127), and the Parent testified that the Student continued to struggle and that teachers complained of his . (Id.) In , the Student was diagnosed with (Id. at 128). The Parent testified that during the Student’s grade year, the CSE team recommended a classroom environment for the Student. (Id. 129) The Student attended public school with an IEP until the grade, at which point he was placed in the Private School. (Id. at 137) The Student was never declassified; he attended the Private School with an IEP until graduation from . (Tr. pp. 138) The Student’s last IEP is dated April 17, 2013. (Ex. B). That IEP indicates that the Student has a disability classification of . (Id.) That IEP was intended to be implemented during the Student’s grade year. (Id.) The IEP recommends a in all subjects with a student/teacher ratio, services, and . (Id.) The IEP rejects (“ ”) and and options. (Id.) The IEP is informed by the March 11, 2013 psycho-educational evaluation. The Student received an score of on the - , Edition, , , which ranks him in the range of . (Ex. G) The Student’s skills were assessed via the - tests of , ; the results of which showed his and skills were . (Id.) The Student also struggled to . (Id.) The Student’s grade, third (3rd) quarter report card showed the Student did not receive an academic grade lower than . (Ex. L)
At the time the Complaint Notice was filed, the Student was years old and attending the grade. The Student’s initial IEP was created when he was in , and he has not been without one since. (Tr. pp. 130) The Student underwent a psycho-educational evaluation on or about March, 11, 2013; the results of which showed the Student’s skills were in and . (Ex. G) The Committee on Special Education (“CSE”) convened on or about April 17, 2013 to prepare an IEP for the Student for the 2013-2014 school year. (Ex. B) The IEP recommended a placement for the Student in the Public School. Id. The Parent received Final Notice of Recommendation (“FNR”) on or about June 19, 2013. (Ex. C) The FNR provides for a with a student/teacher ratio in the Public School. (Id.) The Parent enrolled the Student in the Private School on or about July 31, 2013 (Ex. D), and subsequently sent a letter to the CSE on or about August 19, 2013, rejecting the proposed placement and stating her intent to place the Student in the Private School. (Ex. I) The Student attended the Private School in 2013-2014, where he completed the grade. (Tr. pp. 88) The Student graduated in 2014. Id.
The hearing began on May 28, 2014, at which evidence was admitted. A second hearing date was held on July 11, 2014. The District Representative presented two witnesses, and the Parent presented three. The testimony and evidence offered by the Parent supports my findings that violations attributable to the District led to the denial of a FAPE. The Parent testified as did the School Psychologist and Administrator of the Private School. That testimony, together with the record, supports a finding that the Private School was appropriate. Finally, I have reviewed the record in an attempt to evaluate whether the equities warrant a reduction of tuition reimbursement. I find that the Parent’s failure to provide notice ten (10) business days before placing the Student in the Private school is a reason for such reduction.
DISCUSSION
A board of education may be required to reimburse parents for their expenditures for private education 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. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The first prong; whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged violations in this case.
PRONG I
The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. A pplication of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. S traube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)
This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [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 (Rowley, 458 U.S. at 206-07) [A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).
PROCEDURAL VIOLATIONS
I turn now to the violations alleged in this case that may be properly identified as procedural. The Parent claims she was limited in her ability to participate in the IEP meeting because the goals were not explained to her nor developed with her input.
Testimony in this case indicated that the parent did not respond or object to the goals discussed at the April 17, 2013 IEP meeting. (Tr. pp. 27) A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP (A pplication of a Child with a Disability , Appeal No. 96-31). In this instance, the Parent was in attendance at the CSE meeting. The Parent’s decision not to respond to the discussion during the CSE meeting has no bearing on whether the District provided a meaningful opportunity to participate. However, I find that the Parent was deprived a meaningful opportunity to participate based on the IEP teacher’s admissions. (Tr. pp. 28) The IEP teacher testified that the CSE meeting was very brief, and more importantly, that the goals recorded in the IEP were not in the document at the time of the meeting. (Tr. pp. 28-29) The Parent was initially afforded a meaningful opportunity to participate, the District’s decision to record IEP goals after the CSE meeting is a nominal infraction, though it weighs in favor of finding the denial of a FAPE.
The Parent alleges that the District violated a procedural safeguard by conducting the CSE meeting without the special education teacher.
The IDEA requires a CSE to include, among others, one special education teacher of the student or, where appropriate, not less than one special education provider of the student (20 U.S.C. § 1414[d][1][B][ii]-[iii]; see 34 CFR § 300.321[a][2]-[3]; 8 NYCRR 200.3[a][1][iii]; see 8 NYCRR 200.1[xx] [defining "special education provider, in pertinent part, as an "individual qualified . . . who is providing related services" to the student]; 8 NYCRR 200.1[yy] [defining "special education teacher," in pertinent part, as a "person, . . . , certified or licensed to teach students with disabilities"]). 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]).
I find that the Parent’s claim regarding the special education teacher’s absence from the CSE meeting is unsubstantiated by the record. The attendance page in connection with the April 17, 2014 IEP (Ex. B) indicates that the District Representative was also signed in as the Special Education Teacher. (Ex. B-12; Tr. pp. 19) Accordingly, I resolve this allegation in favor of the District.
The Parent makes a related claim that the teacher from the Student’s school participated by phone, provided minimal input, and did not participate for the duration of the meeting. To the extent that the Student’s teacher did not participate for the duration of the meeting, this claim is similarly unsubstantiated by the record. On this point, the Parent neglected to offer supporting evidence or testimony. To the degree that the teacher’s input was insufficient, this claim is also unsupported. Moreover, such violation, if proven, is a de minimus flaw that does not prevent the Student from receiving a FAPE.
The Parent alleges that the CSE’s written notice of placement was not issued in time for her to schedule a visit with the school before the end of the 2012-2013 school year. When the identity of the school and its resources are relevant to the FAPE determination, “parents have a procedural right to evaluate the school to assess whether it can be reasonably expected to satisfy the child’s IEP.” R.E. v. N.Y .C. Dep’t of Educ., 694 F.3d 167 (2nd Cir. 2012). In this case, the April 17, 2013 IEP calls for instruction in a ( ) for all subjects to be delivered in a special education classroom. (Ex. B). In addition, the IEP authorizes services per week . It also authorizes and per week , and per week . Pursuant to R.E., supra the Parent has a right to visit and evaluate the placement to assess its capacity for satisfying the aforementioned settings and services described in the IEP. Given the Student’s and profile, it is reasonable to assume that the location and size of the classroom would bear on the ability to receive the curriculum. Environmental factors, such as , i.e.
, In this instance, the FNR identifying the recommended placement is dated June 19, 2013. The Parent’s Complaint Notice alleges that the FNR was received too late for the Parent to visit the school and observe the recommended class prior to the end of the 2012/2013 school year. (Ex. A) I credit the Parent’s testimony regarding her effort to observe the recommended placement almost immediately upon receiving the FNR. The Parent testified that she received the FNR shortly after June 19, 2013, at which time she tried to visit the school. (Tr. pp. 147-48) The Parent testified that she was precluded from doing so because the students were testing at that time, and there was no one available to let her into the school and escort her (Id.) The Parent testified that she made an appointment with the assistant principal, but she was unable to visit the school until it reopened in September. (Id. at 49) In light of the Parent’s testimony, I find that the Parent did not receive the FNR with enough time to visit the school and observe the recommended class prior to the end of the 2012/2013 school year. Accordingly, I resolve this allegation in favor of the Parent.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (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, 142 F.3d at 130; 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] [citations omitted]; see Grim , 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). 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]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patsk in v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the Student’s present levels of academic achievement and functional performance (see 34 CFR 7 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlow e v. New Y ork City Bd. of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
I consolidate the Parent’s substantive claims and consider them together. The Parent alleges that the promotional criteria for the Student were inappropriate because they were not modified to meet his needs. (Ex. A) Also, the Parent alleges the Student’s levels on listed on the IEP are below the assessment levels of the test. (Id.)
The Parent’s Complaint Notice states that page 8 of 9 inaccurately reflects the Student’s grade equivalency. I find no reference to the Student’s grade equivalency on page 8 of the April 17, 2013 IEP. I note that the IEP offered as Exhibit B by the Parent is twelve (12) pages. Also, page 1 of the IEP indicates the Student’s fluency is , his percentile rank is , grade equivalency is , and age equivalency is . His is , percentile rank is , grade equivalent is , and age equivalency is . (Ex. B). This information matches the data recorded in the Psycho Educational Evaluation submitted by the Parent as Exhibit G. Unless a misprint of the Student’s data led to miscalculated goals and services, such violation, if proven, would be a de minimus flaw that would not prevent the Student from receiving a FAPE.
The Parent claims promotional criteria for the Student were inappropriate because they were not modified to meet his needs. The IEP indicates the Student was on a track, rather than track. (Ex. B) The IEP general education teacher testified that students in the Public School are expected to achieve credits for graduation. (Tr. pp. 35) This requirement would be the same for the Student; though, the Student was recommended for a of in a program. (Id.) On the other hand, the IEP teacher did not reconcile the difficulty with establishing such a program for a student who is to years behind in certain subject areas. (Id. at 36-37) For this reason, I find that the promotional criteria, as written and intended for the Student in the Public School setting, would be inappropriate to meet the Student’s needs had the Student returned to the Public School. For this reason, I agree with the Parent’s assessment that the promotional criteria would be inappropriate in the context of the recommended placement. I therefore reconcile this issue in favor of the Parent.
The central issue in reimbursement cases such as this is whether the school district offered a FAPE. To this end, the District has the burden of demonstrating the appropriateness of the program recommended by its CSE. In the face of documentary evidence and related testimony offered by the Parent in this instance, I find that the District failed to offer the Parent a meaningful opportunity to participate in the development of the Student’s IEP, and the promotional goals incorporated therein were inappropriate. Moreover, the District did not afford the Parent sufficient time to visit the recommended placement before the end of the 2012/2013 school year. For these reasons, I resolve Prong I in favor of the Parent.
PRONG II
I must now consider whether the Parent met her burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” S chreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
Here, the Student’s IEP authorizes placement in a class ( ). (Ex. B) The Director of the Private School testified that class sizes are for a number of classes, depending on the needs of the Student. (Tr. pp. 83) In this case, the Student has been attending the Private School where there class sizes are typically . (Tr. pp. 137). This has been the Student’s arrangement since the grade. (Id.) The Parent testified that prior to the Student’s entry in the Private School, she was taking the Student to appointments after school. (Id. at 133) By contrast, the Private School is designed to integrate related services during school. (Id.) Many of the students at the Private School have similar disabilities. (Id. at 152) Despite the reported delays associated with the Student’s , I credit the Parent’s testimony about the Student’s overall improvement, not just , but as well. (Id. at 134-35) The Student’s improvement and overall success at the Private School, evinced by the third (3rd) quarter 2013 Report Card (Ex. L), is uncontroverted. Moreover, the Student’s acceptance to community colleges (Tr. pp. 89) indicates that the Private School provides educational instruction specially designed to meet the unique needs of a handicapped child.
Upon the information before me, I find that the private school placement, with students and student-to-teacher ratio, and a program including support and services is likewise appropriate. Therefore, I find that the Parent did meet her burden of proof with respect to the second of the criteria.
PRONG III
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. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington
v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 CFR 300.148). 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 R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. A m y N ., 358 F.3d 150, 160 [1st Cir. 2004])
In this case, the Parent was sent the FNR on or about June 19, 2013. (Ex. C) The Parent testified that she tried to visit the recommended placement upon receiving the FNR, but before she signed the contract (Ex. D) with the Private School on July 31, 2013. (Tr. pp. 167-69) Acknowledging the receipt of the FNR, the Parent sent the District a letter indicating that she would attempt to visit the proposed placement in September. (Ex. H) The Parent’s Ten-Day Notice, dated August 19, 2013 (Ex. I) advised the District of the unilateral placement and desire for reimbursement. Per the Parent’s testimony, she advised the CSE that the class was not appropriate at the CSE meeting. In her July 2, 2013 letter acknowledging the FNR (Ex. H), the Parent advised the chairperson that she wanted to view the proposed placement. The Parent then waited until August 19, 2013 to send Notice rejecting the proposed placement. This gave her a procedural advantage, to the disadvantage of the District. Instead of having the summer to reconvene the CSE when the goals on the IEP would have been in place; reexamine the Parent’s concerns; and reevaluate the Student in an effort to address those concerns or take other action to rectify a flawed IEP, they were left with only days before the start of the school year. I make this finding in the context of the Parent’s perennial desire to unilaterally place the Student and seek reimbursement. (Tr. pp. 137-38)
The District did commit a procedural error by failing to afford the Parent time to visit the recommended placement prior to the end of the 2012/2013 school year. However, the record indicates that the Parent knew she would be unable to visit the recommended placement almost immediately after receiving the FNR. (Tr. pp. 147-48) Still, the Parent waited to notify the District that she was rejecting the recommended placement. The Parent did not offer evidence or testimony to explain why she could not give the District notice of her intent to unilaterally place the Student in the Private School earlier in the summer—before signing her next contract with the Private School. I note also that the Parent has sought funding each year of the Student’s education since the grade. (Tr. pp. 138)
Upon the information before me, I find that the Parent did not provide notice in accord with 20 U.S.C. § 612[a][10][C][iii][I]. In this case, the Parent’s inability to conduct a site visit before the start of school does not overcome her failure to give adequate notice. The Parent could have given notice upon learning that a site visit would not be possible during the same school year before signing the contract with the Private School. She did not. Therefore, this is an equitable consideration that weighs in favor of the District. Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement by written notice ten business days before such removal. (Greenland Sch. Dist., 358 F.3d 150, 160). For the reasons stated above, the Parent’s award for tuition reimbursement is reduced by It is therefore ORDERED
That the District reimburse/pay the Parent/Private School for percent ( ) of the tuition at the Private School upon the presentation of proper invoices for the payment of such tuition.
So Ordered,
Dated: December 3, 2014
, ESQ.
Impartial Hearing Officer
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.