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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: April 23, 2014
May 8, 2014
Actual Record Closed Date: May 22, 2014
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2014
Parent/Father (Via Telephone) — Student
Parent/Mother (Via Telephone) — Student
DOE Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2014
Mother — Student
Father — Student
Representative — DOE
INTRODUCTION
On March 20, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Hearing was initiated by Impartial Hearing Request dated March 17, 2014. (Ex A)
Pre Hearing Conference was held on April 23, 2014. At the conference several details regarding the student history were revealed. Student placement was deferred to the Central Based Support Team (CBST) on January 14, 2014. CBST, has been, and continues to be, unable to secure a placement for the student. (T 4)
Parent was issued a Nickerson Letter so that they could attempt to secure placement on their own for the student, at a state approved school. (T 4)
Parent is in receipt of the Nickerson Letter and packet of information intended to be reviewed by each school to decide whether or not the student will be accepted. (T 5)
A "Nickerson letter" is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E. v. New York City Dept. of Educ., 785 F.Supp.2d 28, 44 [S.D.N.Y. 2011]). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. Aug. 25, 2010]; see Application of the Bd. of Educ., Appeal No. 03110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092; see also Tr. pp. 146-47).
This remedy addresses the circumstance whereby a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) This remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent or given to the parent by the student's eligibility date. The parent must be provided a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)
Hearing Request dated March 17, 2014 includes that the student , classified , attends in a class, , a sensory gym through an outside agency, has been diagnosed with an paraprofessional. (T 10-11 & Ex 1)
Hearing Request alleges the DOE has failed to properly implement the IEP in that it has failed to properly train and deliver PROMPT services to the student. Therapist had not been assigned to the school until December 2013. (Ex 1-1 & 2)
DOE deferred the student to CBST for private school placement on January 17, 2014. Student is still awaiting placement. (Ex 1-2)
Parent, in order to acquire space in an appropriate program seeks to have the DOE send the student’s packet to other school districts. This includes school districts of . (Ex 1-2)
Both parties Exhibits were marked numerically. If reference is made to a Parent’s Exhibit it will include the word “Parent” in any reference.
Transcript incorrectly identifies the speaker at page 81, line 16, as Mr. when it is Ms. .
BACKGROUND
Parent contends the current placement cannot meet the student’s needs as the staff is not trained to work with a . (T 10)
Parent perspective of the that it was based upon the fact that the “school didn't feel they could meet his needs, and they didn't feel that was appropriate.” (T 73)
IEP of May 1, 2013 includes PROMPT therapy session, in school, for three, 30 minute sessions weekly. (Ex 9-22)
CBST application package includes IEP date 01/17/2014. This IEP includes that the student receives some sessions of PROMPT therapy, but does not contain any specific mandate, or that the student continue to receive such a service. (Ex 3-2 & 7-1)
Several denials from approved schools are provided. (Ex 4)
Parent contends that the parents were never invited to nor did they attend any IEP meeting on January 17, 2014. Evidence supports this since there is no attendance sheet contained in the 01/17/2014 IEP, and DOE letter sets forth attempts were made to advise the parent of the IEP change. (T 14, Ex 7 & 6)
Additional IEPs are entered into evidence which placed specific sessions of PROMPT therapy back in place as a service for the student. This includes the March 15, 2013 IEP. (Parent Exhibit 12-13)
IEP of April 4, 2013 also includes the specific mandated PROMPT therapy. (Parent Exhibit 11-13)
DEPARTMENT OF EDUCATION POSITION
Regarding the parent’s sought after relief of having the placement packet sent to other school districts outside of New York City the DOE representative states: “I don’t know what the private school's criteria is for acceptance or admission. I just know at this point the parents are requesting that the packet from CBST be sent to schools that are not on the state approved list and that's not something that we can do…or that I believe the hearing officer can do” (T 6)
If the DOE sends a packet to another school district that district will then believe the DOE will pay for the placement in the outside district. (T 9)
DOE concedes there is a denial of FAPE, there has been a deferral to CBST and issuance of a Nickerson Letter. (T 11-12, Ex 5)
Acknowledging the difficulty in placing the student the DOE would permit the parent to utilize the issued Nickerson letter to place the student for the 2014-2015 school year. (T 60-62 & 77)
The provision of PROMPT therapy in the IEP presents a barrier to placement at the approved schools, who do not have the service. (T 76)
DOE representative contends that the PROMPT therapy was removed from the student’s IEP since it was not in the proper place on the IEP. This was done at the direction of the , and in order to facilitate the CBST process. (T 62-63)
Student’s current school is presently undergoing training to help support the student at the current placement. (T 64)
District, at hearing, sought to adjourn the hearing in order to create a new program for the student., and a reconvene of the CSE. (T 64-65)
DOE representative frankly set forth the current perspective of the case. “It sounds to me that the parents understand their burden now is to try to find an appropriate placement for (the student) beyond, and the District's burden is to try to continue to try to develop an appropriate program .” (T 87)
PARENT POSITION
Parent’s have received the Nickerson Letter and recently the packet of student information referred to that is need for each school to decide whether or not to accept the student. (T 4-5, Ex 5)
Parent has not been able to find a school, on the state approved list, that offers the student all the related services included in the IEP. (T 6)
Parent wants the NYC DOE to send the student packet to other school districts, such as . These districts will not accept a packet directly from the parent. (T 7-8 & 58)
Parent is seeking the DOE to take additional action to place the student. (T 9)
Parent alleges the IEP was changed without parental consent, violating the parent’s rights. Last week the IEP came home and was changed without parent consent, or a meeting taking place. “it was directed by the Special Ed Chairperson to take off PROMPT therapy from his IEP so that his IEP now looks better for a better chance for him to be accepted into the list from the schools that are approved.” (T 10-11)
Parent feels the student requires therapy regardless of placement. (T 11)
Parent believes the student does not actually require a more restrictive setting, just a setting that can meet his needs, which therapy was promised to take place at the community school at the student’s meeting. “Our biggest concern…is the fact that the staff and the school are not trained or have staff that can work with him ” (T 12)
Parent contends they contacted all the schools on the approved list and no one will accept the student due to the mandate, which parent feels is essential for the student. (T 67-69)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
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. Arlington 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]; Patskin 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 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL2736027, 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. 06059; 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. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
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 York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
DOE OFFER OF FAPE FOR THE 2013-2014 SCHOOL YEAR
DOE acknowledges that a FAPE has not been offered to the student for the current school year. The DOE does contend they have been making efforts to place the student through the CBST process and have been working on delivering appropriate services at the current placement. (T 11-12 & 64-65, Ex 5)
I find the DOE failed to offer the student a FAPE for the 2013-2014 school year.
REQUESTED RELIEF
Parent seeks what appears to them to be a simple solution, which is to expand the reach of the CBST to increase the chance of finding an appropriate placement for the student. Parent wants the NYC DOE to send the student packet to other school districts, such as . Parent understands that these districts will not accept a packet directly from the parent. (T 7-8 & 58)
The IDEA is designed to ensure, among other things, that students with disabilities have available to them a free appropriate public education (FAPE) (see 20 USC §1400[d][1][A]; see also Forest Grove School Dist. v. T.A., 557 US 230, 239 [2009]; H.C. v. Coton-Pierrepont Cent. Sch. Dist., 2009 WL 2144016 at *1 [2d Cir. 2009]). In New York, an IHO's "authority is circumscribed by statute" in that he or she must make a decision "on substantive grounds based on a determination of whether the child received a [FAPE]" (H.C., 2009 WL 2144016 at *1; see also 20 U.S.C. § 1415[f][3][E][i]; 34 CFR 300.513[a]; 8 NYCRR 200.5[j][4][i]). Issues that do not sufficiently relate to the identification, evaluation, or educational placement of a child, or the provision of FAPE to that child, are not the proper subject of review in a due process proceeding (see, e.g., H.C., 2009 WL 2144016 at *1).
In the instant case the issue does not relate to the placement of the student, only to the possibility of placement. The request to send the student information packet to additional school districts does not ensure any placement, let alone an appropriate one for the student.
The issue of the CBST being unable to obtain an acceptance by an approved school in a timely manner is a systemic issue, outside the scope of authority of the IHO.
While it may be possible that a parent could, under appropriate circumstances, actually identify a willing and able school district and placement outside of the NYC District, this is not presented in the present case.
The evidence does show that the removal of therapy from the IEP included in the CBST packet was done without parent participation, or otherwise in a proper manner. However, this has been remedied by including this service in the IEPs drafted thereafter. This includes the IEPs of 1/17/14 and 5/1/13. (Parent Ex 7 & Parent Ex 9)
In general, the IDEA requires parental participation in determining the educational placement of a child (see 34 C.F.R. §§ 300.116, 300.327, 300.501[c]); however, the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE's educational placement recommendation (White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; 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]; Application of a Child with a Disability, Appeal No. 07-049; Application of the Bd. of Educ., Appeal No. 99-90; Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 93-5; but see A.K. v. Alexandria City Sch. Bd., 484 F.3d 672 [4th Cir. 2007]). The United States Department of Education (USDOE) has noted that it "referred to 'placement' as points along the continuum of placement options available for a child with a disability, and 'location' as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services" (Placements, 71 Fed. Reg. 46588 [August 14, 2006]).1, [2] This view is consistent with the opinion of the USDOE's Office of Special Education Programs (OSEP), which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE's educational placement recommendation (Letter to Veazey, 37 IDELR 10 [OSEP 2001]; Application of a Child with a Disability, Appeal No. 07-049).
Under State law, the Commissioner of Education may approve the provision of "special services or programs" to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and "private non-residential schools . . . which are within the state" (Educ. Law §§ 4401[2][e], 4402[2][a]; see 8 NYCRR 200.1[d], 200.7). Although a particular private school may meet the Commissioner's criteria for approval to provide special education programs and services to students with a disability, it is the individualized needs of a student with a disability that will ultimately "determine which of such of services shall be rendered" by an approved private provider (Educ. Law § 4402[2][a]).
In the instant case the IHO is asked to identify potential school districts for student placement, which is beyond the scope of IHO authority.
1 The federal and State continuums of alternative placement options are identified in 34 C.F.R. § 300.115 and 8 NYCRR 200.6. discussing this provision of the 1997 amendments, the USDOE noted that "[t]he 'location' of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service. For example, is the related service to be provided in the child's regular classroom or in a resource room?" (Content of IEP, 64 Fed. Reg. 12594 [March 12, 1999]). Current provisions requiring that the location of services be identified on an IEP are found at 20 U.S.C. § 1414[d][1][A][i][VII]; 34 C.F.R. § 300.320[a][7]; 8 NYCRR 200.4[d][2][v][b][7]).
ORDER
1. The DOE failed to offer the student and failed to provide the student with a FAPE for the 2013-2014 school year.
2. The parent relief sought to have the student CBST packet sent to school districts outside of New York City is dismissed.
3. This decision is subject to appeal and review by the State Review Officer. Dated: May 23, 2014
Daniel Ajello, Esq. gc
DANIEL AJELLO
Impartial Hearing Officer DA: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
ENTERED 05/08/2014
1 Letter to , 4/15/14 2 E-mail to , 11/14/13 3 Letter to Parent from DOE, 2/11/14 4 Resolution Agreement, 4/25/13, 5 pages 5 Events Log, 2013, 1 page 6 Letter from Parent, 1/17/14, 1 page 7 Training Log, 11/6/13 8 AT Evaluation Addendum Follow up Report, 4/25/13, 5 pages 9 Description of Services for Students 1 page 10 Prior Written Notice, 10/28/13, 4 pages 11 IEP, 4/4/13, 20 pages 12 IEP, 3/15/13, 18 pages
DEPARTMENT OF EDUCATION
ENTERED 05/08/2014
1 Due Process Request, 3/17/14, 2 pages 2 Due Process Response, 3/27/14, 3 pages 3 CBST Application Package, 2/10/14, 37 pages 4 CBST Responses from Schools, 3/24/14, 14 pages 5 P1R Eligibility Letter, 3/24/14, 3 pages 6 Letter from Regarding Finalized IEP, 4/8/14,
1 page 7 IEP, 1/17/14, 22 pages 8 Evaluation, 2/2/14, 4 pages 9 IEP, 5/1/13, 29 pages
IMPARTIAL HEARING OFFICER
ENTERED 05/08/2014
I E-mail notice to parties, 3/24/14 II Notice of appearance from 3/25/14, 1 page III Subpoena from parent 4/30/14, 1 page
Footnotes
[2] The USDOE previously discussed "location" regarding the 1997 amendments to the IDEA, which for the first time required an IEP to identify the "location" of services. In