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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: January 7, 2014
March 7, 2014
Actual Record Closed Date: June 15, 2014
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2014
ESQ., Attorney — Student
Parents
District Representative, CSE 8 — DOE
School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2014
ESQ., Attorney — Student
Parents
Parents
Upper School District, School (via telephone) — Student
Teacher, School (via telephone) — Student
District Representative, CSE — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parents in a due process complaint notice dated November 19, 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 parents, and/or directly pay for, costs associated with the student’s unilateral private placement at the for the 2012/13 school year (Ex. P-A).[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 forty-five (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 DOE appointed me to hear this matter on May 14, 2013 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on January 7, 2014 and March 7, 2014.[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 November 19, 2012 due process complaint, the student was old and has been diagnosed with: (Exs. SD-1 at 2, P-A at 2, P-E at 1, 25). For the 2012/13 school year, the student attended School (R. 97, 114, 127; Exs. P-A at 1-2,
P-F, P-G). The Commissioner of Education has not approved the as a nonpublic 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 student is not in dispute in this hearing (Exs. SD-1 at 1, 12, P-A at 2). See 34 C.F.R. § 300.8(c)(6); 8 NYCRR § 200.1(zz)(6).[3]
The student started his education at and was placed in a general education class. In the first grade, at the , the student was evaluated by the CSE due to the fact that his academic progress in the classroom assignments. His across multiple domains were found to be efficiently draw upon and apply them to the academic challenges with which he was faced. He was also found to , therefore, , twice weekly, was recommended as well as the implementation of called Results of revealed age appropriate scores and skills across all that were assessed; including, listening, comprehension, . With speech, the student produced multiple articulation errors and the intelligibility of speech in connected was sometimes compromised. Thus therapy services were recommended for the student by the evaluator, two (2) times per week (Ex. P-E 2-3).
Throughout the second and third grades, in addition to the academic support services that the student was receiving in school through the CSE, he also worked with a private tutor at home, two (2) times per week. In the third grade, his teachers noted that he was unable to work independently and would require one-on-one teacher support within the classroom setting. The summer before student’s parents sought out a reevaluation with a private psychologist, Dr. , due to his continued learning difficulties. Based on her findings, Dr. concluded that the student, “is a conceptually bright but a have made the acquisition and mastery of beginning academic skills problematic.” Deficits were identified in the following areas: auditory active memory, sequential
VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV). See 34 C.F.R. § 300.515(c); 8 NYCRR §
200.5(j)(5). processing, auditory retrieval, visual discrimination, and visual organization. The student’s fine motor functioning was also found to be poor. Dr. Taylor reported that “integration of these areas, required in the mastery of reading, writing and arithmetic is particularly problematic and results in a developmental output disorder.” Dr. Taylor added that the student’s “attentional issues and his poor ability to focus for sustained periods of time on difficulty tasks, compounds these aforementioned difficulties in all areas” (Ex. P-E at 3).
Based on the testing results, Dr. Taylor recommended that the student be educated in a small (10:1+1) structured class where teachers are trained to work with bright, learning disabled children. Dr. Taylor felt that the student required individualized instruction throughout the school day, in a classroom with peers who are functioning on the same conceptual level for intellectual and social interactions. Dr. Taylor recommended that the student be provided with a multi-sensory approach to reading and to receive strategies for writing so that his idea would not be lost. Dr. Taylor also recommended that the student’s speech and language therapy continue three times per week in order to address his issues of articulation, auditory processing, retrieval, and memory. Dr. Taylor also recommended that the student continue his occupational therapy services, three (3) times per week, in order to help him with his weaknesses in visual discrimination, visual-perceptual organization, fine motor functioning, and attention (Ex. P-E at 3).
In the fourth grade, the student began attending the Mary McDowell Friends School, which serves children who have learning disabilities. Throughout his years at the Mary McDowell Friends School, the student has received targeted instruction based on his individual needs in classes comprised of twelve (12) students and two (2) teachers and received the following educational accommodations: unlimited time on tests, instructions read aloud, and use of a computer/technological assistance. As of the student’s seventh grade (2010/11 school year), concerns remained about the student’s executive functioning weaknesses, including his organizational skills and his ability to attend and focus (Ex. P- learning problems that are primarily the result an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6). E at 3-4).
On a July 20, 2011 neuropsychological report performed by Dr. , it was noted that the student achieved a Full Scale IQ score placing him in of The student demonstrated in the area of percentile) and Average abilities in the areas of Perceptual Reasoning (PRI = percentile) and Working Memory (WMI = percentile). A significant weaknesses was identified in the area of Processing Speed, in which he demonstrated Borderline abilities (PSI = percentile) (Ex. P-E at 24).
The student’s level of achievement was found . Results of academic testing highlighted a significant discrepancy between the student’s High Average verbal cognitive abilities (VIQ = percentile) and (rate, accuracy, and fluency) which ranged between . Results of uncovered weaknesses which Dr. believed were hindering the student’s academic progress in reading, writing and math. Similarly, the results of multiple behavioral rating scales indicated that the student was experiencing significant that negatively impacted his academic and home functioning (Ex. P-E at 25).
Among other recommendations, Dr. stated that the student “must continue to receive instruction in [a] learning environment that is structured and geared toward adolescents with language based . He requires a small class size for his academic subjects and a low student-to-teacher ratio (Ex. P-E at 25).”
On February 20, 2012, the parents signed an enrollment contract with School for the student to attend that program for the 2012/13 school year (Ex. P-G).
At a meeting held on March 26, 2012, the CSE convened to develop an IEP for the student for the 2012/13 school year. The CSE recommended that the student receive the majority of his instruction in integrated co-teaching (“ICT”) classes on a ten (10) month basis in a community school. The CSE also recommended that the student receive related services of small group (3:1) therapy, two (2) times per week for forty-five (45) minutes per session, and small group (3:1) , two (2) times per week for forty-five (45) minutes per session (Ex. SD-1 at 5-6, 9). In a final notice of recommendation (“FNR”) dated August 12, 2012, the DOE informed the parents that the student’s recommended program would be implemented at (Ex. SD-2).
In a letter dated August 22, 2012, counsel for the parents wrote to the CSE to state that the parents were rejecting its proposed program for the student and would unilaterally enroll the student at public expense at for the 2012/13 school year (Ex. P-B). In a letter dated September 19, 2012, the student’s mother wrote to the CSE to state that she had visited the proposed program for the student on September 14, 2012 and based on that observation was rejecting the program as inappropriate for her son (Ex. P-H). This hearing ensued.
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 for the 2012/13 school year should be denied. The DOE’s CSE offered the student a free appropriate public education in the least restrictive environment for the 2012/13 school year. The was an inappropriate program and overly restrictive placement for the student. The relevant equities also mitigate against a tuition reimbursement/direct payment award (R. 19-22, 234-239).
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. appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the (R. 222-234).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) 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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206-07 (1982).[4]
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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); 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 has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see 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. 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); 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. 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, 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“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); see also 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. Board 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 C.F.R. § 300.320(a)(1);[8] NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Composition of March 26, 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 March 26, 2012 CSE was not properly constituted in that it lacked a general education teacher (R. 222; Ex. P-A at 2).
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; and an individual who can interpret the evaluations being reviewed by the CSE. 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).
Federal and State law also provides that the regular education teacher of the child "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 supplemental aids and services, program modification, 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).
Given that the March 2012 CSE recommended that the student receive instruction in an ICT setting alongside regular education students, I find that a regular education teacher of the student was required at the March 26, 2012 meeting (Ex. SD-1 at 5-6, 9, 11). Cf. 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep't of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010). It is undisputed that no regular education teacher signed in at the March 26, 2012 CSE meeting (Ex. SD-1 at 11). Ms. Elise Grandoit, a school psychologist who participated in the meeting as the district representative, stated that she had no specific recollection of the March 26, 2012 meeting
(R. 23, 27-28, 35), but believed that Ms. participated as “the teacher assigned to the ” based on some of the handwriting which appeared on the IEP attendance page (R. 27-29). Given Ms. s inconclusive testimony on this point, I must find that the DOE has failed to offer sufficient evidence that the March 2012 CSE was duly constituted.
I also find that the absence of a general education teacher from the meeting significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. 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 student has been enrolled at the Mary McDowell Friends School, an institution that serves students with learning disabilities, since the fourth grade (2007/08 school year) (R. 97, 128; Ex. PE at 3). The parents' opportunity to discuss the student's ability to function in ICT classes with general education students, to meet New York State ninth grade level instructional standards, to study a foreign language and meet the applicable promotion criteria were all significantly compromised by the absence of a general education teacher from the March 26, 2012 meeting.
Alternatively, even if I were to credit Ms. testimony on the presence of Ms. at the March 26, 2012 meeting, I would still find that the meeting was not duly constituted as no evidence was presented that Ms. was, or would likely have been, the student’s general education teacher. See 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d). Ms. was unsure at the hearing of what grades Ms. was certified to provide instruction but confirmed that Ms. had not taught in a classroom for three-tofour years prior to the March 26, 2012 meeting (R. 29, 57).
C. Timeliness of March 26, 2012 IEP
The parents assert that the CSE failed to transmit a copy of the IEP developed at the March 26, 2012 meeting to them in a timely manner (R. 224; Ex. P-A at 2).
The IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability, see 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3D AT 194; Tarlowe v. New York City Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), and that a school district must have a seat available for the student in the proposed program for the first day of school, see Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 08-088 at 12-13 (SRO Oct. 29, 2008).
I take administrative notice that the DOE's 2012/13 (ten month) school year commenced on September 6, 2012. The evidence entered into the hearing record reflects that the CSE convened on March 26, 2012 to develop an IEP for the student for the 2012/13 school year. The projected implementation date of that IEP was September 5, 2012 (Ex. SD-1, 6). The parents received the IEP until on or about August 18, 2012 and received a Final Notice of Recommendation ("FNR") identifying the location of the proposed program on or about August 13, 2012, which they visited on September 14, 2012 (Exs. SD-2, P-B at 2, P-H at 1). As the evidence contained in the hearing record reflects that the DOE had an IEP for the student in effect at the beginning of the 2012/13 school year and that it had a seat available for the student in the proposed program for the first day of school, I find that the CSE's delay here in transmitting its IEP for the student for the 2012/13 school year did not impede the student's right to a FAPE, significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause 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).
D. Adequacy of IEP Goals
The parents allege that the annual goals developed for the student were generic and vague (R. 224; Exs. SD-1 at 3-5, P-A at 3).
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. The March 26, 2012 IEP included annual goals in: comprehension, written expression, spelling, , which were consistent with those educational deficits identified in the IEP and described what he could reasonably be expected to accomplish within a ten (10) month period. 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. 30-33, 43-44; Exs. SD-1 at 3-5). 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).
Alternatively, while the CSE erred in omitting annual goals from the March 16, 2012 IEP to address the student's attention and math issues, I find that the omission of such goals from his IEP did not impede his right to a FAPE or cause a deprivation of educational benefits given the program modifications recommended by the CSE for the student (R. 224; Exs. SD-1 at 1-5, P-A at 3, P-E at 1, 7, 25). 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).
E. 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.
Based on the evidence submitted into the hearing record, I find that the CSE's proposed program for the student was not reasonably calculated to provide him with meaningful educational benefit. Following four (4) days of evaluation, Dr. noted in her July 2011 report that the student required “a small class size for his academic subjects and low student-to-teacher ratio” (Ex. P-E at 1, 25). The CSE, however, recommended for the 2012/13 school year that the student receive the majority of his instruction in ICT classes which the student’s mother observed to contain approximately twenty (20) students with two (2) teachers (Exs. SD-1 at 5-6, P-H at 1). Ms. , who has never evaluated, observed or provided instruction to the student, stated that ICT classes were appropriate for the student because he did not (R. 26, 52-53, 63-64, 68, 72). However, based on their personal knowledge for the student, Mr. Rosen offered more credible testimony that the student required more individualized instruction and support in the classroom than that called for in the March 26, 2012 IEP to meet to meet his instructional goals and ninth grade curriculum standards (R. 114-116, 127, 164-167).
F. Appropriateness of Proposed Placement
The parents allege that the would not have been able to implement the management needs (program modifications) of the student's proposed program and that the school and its ICT classes would have been too large to meet the student's educational needs (R. 228; Exs. SD-2, P-A at 2, 4, P-H).
Challenges to an assigned public school site are generally relevant to whether the district properly implemented a student's IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district's offered program must be determined on basis of the IEP itself. See R.E. v. New York City Dep't of Educ., 694 F.3d 167, 186-188 (2d Cir. 2012). The Second Circuit has explained that the parents' "[s]peculation that the school district would not adequately adhere to the IEP is not an appropriate basis for unilateral placement." R.E., 694 F.3d at 195; see F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *14-*16 (S.D.N.Y. Oct. 16, 2012); Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at *15 (W.D.N.Y. Sept. 26, 2012) (finding the parents' pre-implementation arguments that the district would fail to adhere to the IEP were speculative and misplaced), adopted, 2012 WL 5473485 (W.D.N.Y. Nov. 9, 2012).
While several district courts have, since R.E. was decided, continued to wrestle with the difficult issue regarding challenges to the implementation of an IEP made before the student begins attending the school and taking services under the IEP, see D.C. v. New York City Dep't of Educ., 2013 WL 1234864, at *11-*16 (S.D.N.Y. Mar. 26, 2013) (holding that the district must establish that it can implement the student's IEP at the assigned school at the time the parent is required to determine whether to accept the IEP or unilaterally place the student); B.R. v. New York City Dep't of Educ., 910 F. Supp.2d 670, 677-678 (S.D.N.Y. 2012) (same); E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 (S.D.N.Y. Sept. 29, 2012) (holding that parents may prospectively challenge the adequacy of a "placement classroom" when a child has not enrolled in the school because district are not permitted to assign a child to a public school that cannot satisfy the requirements of an IEP), the State Review Officer has found it necessary to depart from those cases, see Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 13-161 at 13 (SRO Nov. 20, 2013).
Since these prospective implementation cases were decided in the district courts, the Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child," see P.K. v. New York City Dep't of Educ., (Region 4), 2013 WL 2158587, at *4 (2d Cir. May 21, 2013), and, even more clearly that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan," not a retrospective assessment of how that plan would have been executed," K.L. v. New York City Dep't of Educ., 2013 WL 3814669, at *6 (2d Cir. July 24, 2013) (rejecting as improper the parents' claims related to how the proposed IEP would have been implemented). Thus, the analysis of the adequacy of an IEP in accordance with R.E. is prospective in nature, but he analysis of the IEP's implementation is retrospective. Therefore, if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP. See R.E., 694 F.3d at 186-188; see also Grim, 346 F.3d 381-382 (holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined to be appropriate, but the parents chose not to avail themselves of the public school program).
As explained more recently, "[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of the proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented." A.M. v. New York City Dep't of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013); see R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *17 (S.D.N.Y. Sept. 27, 2013); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *26 (E.D.N.Y. Aug. 19, 2013); M.R. v. New York City Dep't of Educ., 2013 WL 4834856, at *5 (S.D.N.Y. Aug. 14, 2013) (finding that the argument that the assigned school would not have been able to implement the IEP is "entirely speculative"); see also N.K. v. New York City Dep't of Educ., 2013 WL 4436528, at *9 (S.D.N.Y. Aug. 13, 2013) (citing R.E. and rejecting challenges to placement in a specific classroom because "'[t]he appropriate inquiry is into the nature of the program offered in the written plan.'").
In this case, the argument that the DOE would have failed to implement the March 26, 2012 IEP at the Vanguard High School is speculative insofar as the parents did not accept the March 26, 2012 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in the , a private school of their choosing (Exs. SD-1, SD-2, P-A at 4, P-B, P-G, P-H). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student's IEP at School.
G. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2012/13 school year, I turn to the appropriateness of the parents’ private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See 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.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Mr. , Ms. , and the student’s mother, I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. (R. 51, 111, 163-164; Ex. P-I).
Mr. testified at the hearing that he was the during the 2012/13 school year (R. 96). Ms. stated that the educated approximately seventy-five (75) learning disabled students during the 2012/13 school year in grades nine through twelve (R. 97). Students at received instruction in math and English in classes of three-to-nine similarly functioning students with one teacher (R. 100-101, 103). In science and social students, students received instruction in classes of approximately twelve (12) students from two
(2) teachers (R. 102-104). Students requiring receive that service in small groups (of approximately six-to-seven students) using a push-in model (R. 105-107, 134-135).
Ms. testified at the hearing that she was an during the 2012/13 school year who had frequent contact with the student’s instructors (R. 144-145). To address the student’s , he received instruction at a slower pace and his teachers conducted frequent checks for understanding (R. 145, 150-151, 157). To address the student’s attention and distractibility issues, his teachers used constant redirection within their small classes (R. 145, 148-149). Lastly, to address the student’s difficulties, he participated in morning and afternoon advisory periods and a universal study hall where he received individual and small group instruction from a variety of subject-area teachers (R. 105, 118-121, 151153). Both Ms. noted that the student had made progress which educated at the (R. 51, 163-164; Ex. P-I).
H. Relevant Equities
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that 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 student from public school, or by written notice ten (10) 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.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). 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. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
In letters dated August 22, 2012 and September 19, 2012, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2012/13 school year (Exs. P-B, P-H). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the was unreasonable (Exs. P-F, P-G), see Carter, 510 U.S. at 16.
Alternatively, while the DOE contends that the parents never intended to place the student in public school for the 2012/13 school year, based on their signing of an enrollment contract prior to the March 26, 2012 CSE meeting which required a nonrefundable deposit (R. 21-22; Exs. P-G), the parents' pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of their failure to cooperate with the development of an IEP or their interference with the selection of an appropriate placement by the DOE, see A.R. v. New York City Dep't of Educ., 2013 WL 5312537 (S.D.N.Y. Sept. 23, 2013); New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *15 (E.D.N.Y. July 20, 2011); cf. T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2012/13 school year is GRANTED; and within thirty
(30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs, including tuition, associated with the student’s unilateral private placement at the for the 2012/13 school year, and shall directly pay the private school for any outstanding costs associated with said placement. Dated:June 27, 2014
Jeffrey Schiro mv
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 7, 2014
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 11/19/12, 6 pgs.
B. Notice of Unilateral Placement, 8/22/12, 2 pgs.
C. [Reserved]
D. Class Schedule, 9/25/12, 1 pg.
E. Testing Report, 7/20/11, 26 pgs.
F. Affidavit of Tuition Payments, 1/22/13,[1] pg.
G. Enrollment Contract, 2/20/12, 2 pgs.
H. Letter to , 9/19/12,[2] pgs.
I. Second Semester Report, 6/20/13, 8 pgs.
DEPARTMENT OF EDUCATION
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 5/14/13, 1 pg.
II. Confirmation of Extension, 5/31/13, 1 pg.
III. Confirmation of Extension, 6/12/13, 1 pg.
IV. Confirmation of Extension, 7/30/13, 1 pg.
V. Confirmation of Extension, 8/29/13, 1 pg.
VI. Confirmation of Extension, 9/30/13, 1 pg.
VII. Confirmation of Extension, 10/30/13, 1 pg.
VIII. Confirmation of Extension, 11/29/13, 1 pg.
IX. Confirmation of Extension, 12/20/13, 1 pg.
X. Confirmation of Extension, 1/29/14, 1 pg.
XI. Confirmation of Extension, 2/28/14, 1 pg.
XII. Confirmation of Extension, 3/27/14, 1 pg.
XIII. Confirmation of Extension, 4/17/14, 1 pg.
XIV. Confirmation of Extension, 5/15/14, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses and their closing statements and to allow for adequate time for my review of the hearing record taken 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 the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 85-86, 213, 214; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-
[3] Learning disability means a disorder in one or more of the basic processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, . The term does not include
[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.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ.,
[1] Individualized Education Program (IEP), 3/26/12, 11 pgs.
[2] Final Notice of Recommendation (FNR), 8/13/12, 1 pg. IMPARTIAL HEARING OFFICER None DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 7, 2014 PARENT None DEPARTMENT OF EDUCATION None IMPARTIAL HEARING OFFICER None DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING PARENT None