New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 29, 2013

November 19, 2013

December 19, 2013

Actual Record Closed Date: December 31, 2013

Hearing Officer: Jeffrey Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2013

ESQ., Attorney — Student

Parents

Brother — Student

DOE Representative — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19,

2013

ESQ., Attorney — Student

Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19,

2013

ESQ., Attorney — Student

Brother — Parents

DOE Representative — DOE

(via telephone) — 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 attorneys for the student and the parent in a due process complaint notice dated January 2, 2013. 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

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 , 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, or educational placement of a student with a , or a student suspected of having a , 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

In a due process response dated January 10, 2013, the DOE denied each and every allegation contained in the parents’ due process complaint (Ex. P-D at 1). See 8 NYCRR §§ 200.5(i)(4), (5). On April 11, 2013, the DOE appointed me to hear this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on: April 29, 2013; November 19, 2013; and December 19, 2013.^[1] 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 January 2, 2013 hearing request, the

IV. POSITIONS OF THE PARTIES

A. The DOE

The parent’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. . The relevant equities also mitigate against a reimbursement/direct payment award (R. 16-17; Ex. P-D).

B. The Parents

The DOE should be ordered to reimburse the parent and/or directly pay for the student’s unilateral placement at the for the 2012/13 school year. The CSE’s proposed program for the student was both procedurally and substantively deficient and served to deny the student a free appropriate public education.

The 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 (Ex. P-A).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.^[2] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192. The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

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).

B. Composition of the May 2012 CSE

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parent alleges that the May 23, 2012 CSE was not properly constituted (Ex. PA).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a (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

C. Adequacy of IEP Goals

The parent alleges that the annual goals developed for the student did not adequately address her particular needs (Ex. P-A).

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 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 . 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). 34 C.F.R. § 300.320(a)(3).

D. 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.

F. Appropriateness of the

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 parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet her 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 parent’s 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).

G. Relevant Equities

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).

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 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); 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 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “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.

In letters dated August 20, 2012 and October 17, 2012, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the at public expense for the 2012/13 school years (Exs. SD-9, P-S). 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 parent was 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-C, P-Q), see Carter, 510 U.S. at 16.

H. Prospective Relief

“Where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief.” Mr. & Mrs. A., 769 F. Supp. 2d at 428. Since the parent has selected the as the unilateral placement, and her financial status is at issue, the parent carries the burden of production and persuasion with respect to whether she has the financial resources to “front” the costs of the and whether she is legally obligated for the student’s tuition payments. See, e.g., Application of a Child with a (New York City Dep’t of Educ.), Appeal No. 12-004 at 16 (SRO March 19, 2012).

The parent has established that there was a lack of financial ability to "front" the student's tuition costs for the 2012/13 school year. The parent incurred an obligation to pay the the tuition as related service costs for the in the amount of $44,900, for the student’s enrollment there during the 2012/13 school year (Exs. P-C, P-G, P-O, P-Q). The parent is legally responsible for the tuition, as she signed the contract and has assumed financial and legal responsibility for the tuition whether or not she prevails at the impartial hearing (Ex. P-C). The parent’s 2011 household income was $21,200 (Ex. P-J). As of November 2013, the parent had paid $8,000 toward the student’s tuition to the for the 2012/13 school year after securing a loan in that amount from her son (R. 1298; Exs. P-G, P-H, P-

I, P-O). She has not yet paid the full cost of the tuition because she cannot afford to do so.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

The parent’s 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 parent 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: January 15, 2014

_______________________

JEFFREY SCHIRO, ESQ. JS;mv 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.

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 29, 2013

PARENT

A. Due Process Complaint Notice/Impartial Hearing Request, 1/2/13, 2 pgs.

B. Letter from parent, 6/20/12, 2 pgs.

C. , 8/30/12, 3 pgs.

DEPARTMENT OF EDUCATION

1. Notice of IEP Meeting 5/15/12, 9 pgs.

2. Individualized Education Program (IEP), 5/23/12, 9 pgs.

3. , 2/2012, 2 pgs.

4. , 2/2012, 1 pg.

5. 12/5/11, 2 pgs.

6. , 5/10/11, 6 pgs.

7. Notice of Recommended Deferred Placement, 5/23/12, 1 pg.

8. Final Notice of Recommendation (FNR), 8/13/12, 1 pg.

9. from parent, 10/17/12, 2 pgs.

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 19, 2013

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 19, 2013

PARENT

D. DOE Due Process Response, 1/10/13, 4 pgs.

E. , 2012/13, 1 pg.

F. , 4/17/13, 1 pg.

G. , 4/22/13, 1 pg.

H. Poof-of-payments, various dates, 12 pgs.

I. Loan Agreement, 8/28/12, 1 pg.

J. U.S. Individual Tax Return, 2011, 2 pgs.

K. 4/22/13, 1 pg.

L. , 10/2012, 7 pgs.

M. Report, 2/2013, 2 pgs.

N. Report, 2/2013, 1 pg.

O. of Payment, 11/13/13, 2 pgs.

P. Update, 2/2013, 1 pg.

Q. for Related Services, 10/12/13, 1 pg.

R. , 10/12/13, 1 pg.

S. from parent, 8/20/12, 2 pgs.

T. ttendance, 6/26/13, 1 pg.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. Confirmation of Extension, 4/29/13, 1 pg.

II. Confirmation of Extension, 6/17/13, 1 pg.

III. Confirmation of Extension, 7/22/13, 1 pg.

IV. Confirmation of Extension, 8/21/13, 1 pg.

V. Confirmation of Extension, 9/13/13, 1 pg.

VI. Confirmation of Extension, 10/22/13, 1 pg.

VII. Confirmation of Extension, 11/19/13, 1 pg.

VIII. Confirmation of Extension, 12/19/13, 1 pg.

Footnotes

[1] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate time to present their available witnesses on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 85-86; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[2] 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.