NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 3, 2014
May 21, 2014
Actual Record Closed Date: August 1, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2014
ESQ., Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2014
ESQ., Attorney — Student
Parents
Parent (via telephone) — Student
Director, (via telephone) — Student
DR., District Representative — 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 originally requested by the attorney for the student and the parents in a due process complaint notice dated September 12, 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 school year
(Ex. P-M).[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 December 18, 2013, following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on April 3, 2014, and May 21, 2014.[2]
At the April 3, 2014 hearing, I denied the DOE’s motion for an adjournment/continuance due to the unavailability of its witnesses and precluded receipt of testimony of those witnesses on a later date. See 34 C.F.R. §§300.512(a)(3), (b)(2), §300.515(c); 8 NYCRR §§ 200.5(xii)(c)-(f); J.D. v. Kanawha County Bd. of Educ., 53 IDELR 225, 109 LRP 76658 (S.D. W. Va. Nov. 4, 2009) (hearing officers have discretion to grant an extension upon request); L.C. & K.C. v. Utah State Bd. of Educ., 188 F. Supp. 2d 1330, 1338 (D. Utah 2002) (same); Letter to Steinke, 18 IDELR 739 (OSEP 1992) (hearing officer may, upon an objection to the admission of the evidence by the opposing party, either grant the party's request for a continuance, or prohibit introduction of the evidence).
On January 29, 2014, hearing dates in this matter were set for April 2, 2014 and April 3, 2014. On March 17, 2014, the DOE requested an adjournment of the April 2, 2014 hearing due to the unavailability of its witnesses. The parents did not oppose that request. On March 21, 2014, I granted the DOE’s request to adjourn the April 2, 2014 hearing. In a March 21, 2014 e-mail to me, on which the DOE’s representative was copied, the parents’ counsel requested confirmation that the April 3, 2014 case would proceed as scheduled. The DOE did not respond to counsel’s inquiry. On March 21, 2014 I e-mailed both parties confirming that the April 3, 2014 hearing would proceed as scheduled. On April 2, 2014, the DOE requested an adjournment of the April 3, 2014 hearing due to witness and litigator availability. The parents opposed the DOE’s request. In an April 2, 2014 e-mail to the parties, I denied the DOE’s request to adjourn the April 3, 2014 hearing. The DOE renewed its request for an adjournment/continuance of the April 3, 2014 hearing at the outset of the April 3, 2014 hearing. The parents again opposed that request. I denied the DOE’s request for an adjournment/continuance as untimely, unfair and prejudicial to the interests of the student and the parents (R. 34-48).
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 September 12, 2013 due process complaint, the student was has been diagnosed with (R. 145; Exs. SD-1 at 3, SD-3 at 1, SD-6 at 1, P-M at 2). For the 2013/14 school year, the student at the part of (Exs. P-H at 2, P-I, P-K, P-L at 2, P-M at 2). The Commissioner of Education has not approved the Bishop Ahern High School 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 as a student with an intellectual disability is not in dispute in this hearing (Exs. SD-1 at 1, SD-2, SD-5 at 1, P-B at 1, P-M at 2). See 34 C.F.R. § 300.8(c)(7); 8 NYCRR § 200.1(zz)(7).[3]
As part of a April 18, 2012 psychoeducational evaluation, the Wechsler was attempted, but a full scale IQ was not able to be assessed. was administered with the student’s mother as a respondent. The student’s overall adaptive behavior composite was . The student’s classroom teacher indicated that he was functioning at an upper kindergarten level in reading comprehension, vocabulary and decoding. The student also presented with receptive and expressive language delays (Ex. SD-3 at 2-3).
At a meeting held on June 8, 2012, the CSE convened to develop an IEP for the student for the 2012/13 school year. The CSE recommended that the student receive instruction in a general education setting supported by special education teacher support services (“SETSS”), five (5) times per week in a separate location. The CSE also recommended that the student receive related services of: individual therapy, five (5) times per week for thirty (30) minutes per session; individual occupational therapy, two
(2) times per week for thirty (30) minutes per session; and individual physical therapy, two (2) times per week for thirty (30) minutes per session (Exs. SD-5, P-B at 6-7).
In an April 11, 2013 classroom teacher/student evaluation, the student’s teacher noted that the student was functioning significantly below chronological age expectations in all skill areas. The student’s teacher stated that the student worked best in a small group setting or when given one-on-one attention (Ex. SD-7 at 1-2).
At a meeting held on April 23, 2013, the CSE convened to develop an IEP for the student for the 2013/14 school year. The CSE recommended that the student receive the majority of his instruction in a special class in a specialized (District 75) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; adaptive physical education; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; and individual speech/language therapy, five (5) times per week for thirty (30) minutes per session (Exs. SD-1 at 11-12, 15-16, SD-4, SD-6 at 1, SD-8 at 1). In a notice dated June 14, 2013, the DOE advised the parents that the student’s recommended program would be implemented ( ) located (Ex. SD-2).
In a letter to the CSE dated August 20, 2013, counsel for the parents and the student stated that the parents were rejecting the CSE’s proposed program and would enroll the student at the for the 2013/14 school year at public expense (Ex. P-L). 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 the for the 2013/14 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and program for the student in which he has failed to make meaningful progress. The relevant equities also mitigate against a reimbursement/direct payment award (R. 28-30).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at the for the 2013/14 school year. The CSE failed to develop an appropriate educational program for the student. The CSE’s IEP contains only one basic math goal and no reading or writing goals. Additionally, there are no speech goals or physical therapy goals. The management needs section of the IEP is also void of the student’s need for small group or one-on-one instruction. The DOE’s proposed placement for the student was also too large and would deny the student access to non-disabled peers. 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 (R. 30-32; Exs. IHO-IX at P-L at 1-2, P-M at 2-4).
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
1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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); 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., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Adequacy of IEP Goals
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 parents allege that IEP lacked necessary annual educational goals in reading, writing, math physical therapy (Exs. IHO-IX at 6, P-L at 1, P-M at 2).
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).
The hearing record reflects that the CSE’s IEP for the student for the 2013/14 school year established annual educational goals which were reasonably related to his educational deficits. The April 23, 2013 IEP included annual goals in: occupational therapy , activities of daily living and safety awareness which were consistent with those educational deficits identified in the IEP and described what the student could reasonably be expected to accomplish within a twelve (12) 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 (Ex. SD-1 at 5-11). 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).
C. 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. Accordingly to the April 23, 2013 IEP, the student was functioning “ .” The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a . Although the student’s teacher during the 2012/13 school year advised the CSE that the student required instruction in a small group setting or on a one-on-one basis in order to learn, no provision for such instruction was included in the student’s IEP. While the CSE suggested that “instructors should differentiate instruction to meet [the student’s] learning style,” the IEP fails to adequately explain what this direction is intended to mean. Similarly, while the IEP states that an special class in a specialized school was considered, and rejected, by the CSE, neither the IEP nor the meeting minutes provide any meaningful analysis on how the CSE arrived at that determination (Exs. SD-1 at 1, 3, 11, 17, SD-7 at 1-2).
D. Appropriateness of Proposed Placement
The parents allege would not have been able to implement the student’s proposed program, was too large to meet the student’s educational needs, and would offer the student no access to his non-disabled peers (Exs. IHO-IX at 6-9, P-L at 1-2, P-M at 34). 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 April 23, 2013 IEP is speculative insofar as the parents did not accept the IEP containing the recommendations of the CSE or the programs offered by the DOE and instead chose to enroll the student in , a private school of their choosing, prior to the commencement of the 2013/14 school year (Exs. P-K, P-L, P-M). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at .
E. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2013/14 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 Ms. and the student’s parents, I , was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (Exs. P-I, P-J).
Ms. , the Director of , spoke about the educational program of the school being a functional academic curriculum that provides students with academic enrichment along with skills necessary for independence, including communication, social and emotional skills (R. 78, 80). With only thirty (30) students in the school and just eight (8) students in the student’s class, the school followed a curriculum known (R. 78, 87; Ex. P-G). There were six (6) domains curriculum including reading, math, language arts, vocational training, science and social studies (R. 79). The school also provided the student with a structured setting with predictable routines (R. 81).
In the classroom, the student received individualized attention (R. 87). Additionally, teaching strategies were individualized and the student was provided with such things as instruction in a small group or on a one-to-one basis, redirection and prompting to remain on task, and visual aids such as technology to reinforce concepts (R. 80, 85-86, 91, 125). The developed detailed goals for the student to work on which focused on math, reading, science, social studies, and daily living skills (R. 99-100; Ex. P-I).
The student received all of his related services at the school (R. 121). The related service providers were an integral part of the school community working directly with teachers to help students integrate skills across arenas between therapy sessions and the classroom. had a room dedicated for students to receive occupation and physical therapies (R. 83). No more than three (3) students were allowed in the physical/occupational therapy room at a time and the room had sound absorbing barriers to help students focus. In another room, students received speech therapy services where no more than two (2) therapists worked in the room. This room was also equipped with sound absorbing barriers to assist students (R. 84).
As part of the student’s educational program, he had daily opportunities to interact with students without disabilities (R. 94; Ex. P-H). is located on the grounds of a high school with typically developing students, and as a result each morning the student had one period of peer tutoring where he was interacting with students without disabilities in small games and activities. Such activities were designed to build social skills in addition to working on (R. 95). The student also spent time with the students from the general education high school each day at lunch (R. 96-97). Additionally, a portion of his school day was dedicated to providing him pre-vocational and vocational skills to begin preparing him for post-secondary experiences (R. 100; Ex. P-H).
The student made substantial progress the 2013/14 school year. Both Ms. and the student’s mother testified that through the student’s interactions with nondisabled peers, he (R. 96, 109, 161). Academically, he (R. 109-110). Among other things, he improved his ability to sequence numbers, identify site words, and answer comprehension questions with prompts (R. 111-112; Ex. P-J).
F. 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).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the Bishop Ahern High School for the 2013/14 school year. In a letter dated August 20, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the Bishop Ahern High School at public expense for the 2013/14 school year (Ex. P-L). 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 (Ex. SD-4), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the Bishop Ahern High School was unreasonable (Ex. P-K), see Carter, 510 U.S. at 16.
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 2013/14 school year, is GRANTED; and within thirty
(30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs associated with the student’s unilateral private placement at School for the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement. Dated: August 12, 2014
Jeffrey J. Schiro, Esq. gc
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JJS: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 ON APRIL 3, 2014
PARENTS
A. [Reserved]
B. Individualized Education Program (IEP), 6/8/12, 17 pgs.
C. [Reserved]
D. [Reserved]
E. [Reserved]
F. [Reserved]
G. Classroom Profile, 2013/14, 2 pgs.
H. Class Schedule, 2013/14, 1 pg.
I. Educational Objectives, 2013/14, 7 pgs.
J. Quarterly Progress Report, 2/2014, 5 pgs.
K. Enrollment Contract, 2013/14, 4 pgs.
L. Letter to (CSE) from J. Barney, 8/20/13, 6 pgs.
M. Due Process Complaint Notice/Impartial Hearing Request, 9/12/13, 5 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 4/23/13, 18 pgs.
2. Final Notice of Recommendation (FNR), 6/14/13, 1 pg.
3. Psychoeducational Evaluation, 4/18/12, 4 pgs.
4. [Reserved]
5. Speech/Language Progress Report, 4/17/13, 1 pg.
6. [Reserved]
7. Classroom Teacher Evaluation, 4/11/13, 4 pgs.
IMPARTIAL HEARING OFFICER
I. Subpoena, 3/5/14, 2 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 21, 2014
PARENT
None
DEPARTMENT OF EDUCATION
4. CSE Minutes, 4/23/13, 2 pgs.
6. Physical Therapy Progress Report, undated, 5 pgs.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II. Confirmation of Extension, 1/6/14, 1 pg.
III. Confirmation of Extension, 1/29/14, 1 pg.
IV. Confirmation of Extension, 3/4/14, 1 pg.
V. Confirmation of Extension, 3/24/14, 1 pg.
VI. Confirmation of Extension, 4/24/14, 1 pg.
VII. Confirmation of Extension, 5/28/14, 1 pg.
VIII. Confirmation of Extension, 7/31/14, 1 pg.
IX. Memorandum of Law, 6/7/14, 13 pgs.
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 post-hearing briefs and in order 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. 205-208; Exs. 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).
[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[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
[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