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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: December 17, 2013
Actual Record Closed Date: February 14, 2014
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17, 2013
ESQ., Attorney — Student
Parents
Principal (via telephone) — Student
Teacher (via telephone) — Student
DOE Representative — DOE
School Psychologist (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 September 18, 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 for Special 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 September 19, 2013. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated October 3, 2013, the DOE denied each and every allegation contained in the parents’ due process complaint (Ex. PO at 1). See 8 NYCRR §§ 200.5(i)(4), (5). A hearing in this matter was thereafter held on December 17, 2013.[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 September 18, 2013 hearing request, the student was eight (8) years old and presented with a deficits (Exs. SD-1 at 1-2, SD-4 at 2, P-A at 2, P-C at 1-2). For the 2012/13 school year, the student attended in Flushing (Exs. P-A at 1, P-Q, P-R, P-T). The Commissioner of Education has not approved 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 learning disabled student is not in dispute in this hearing (R. 31; Exs. P-A at 2, P-O at 1). See 34 C.F.R. § 300.8(c)(6); 8 NYCRR § 200.1(zz)(6).[3]
During the 2011/12 school year, the student attended the second grade at YESS, where he had been placed by his parents (Ex. SD-4 at 2). In a notice dated May 10, 2012, the parents were advised that additional assessments were required as part of a requested reevaluation or mandated three-year evaluation. On May 15, 2012, the parents provided the DOE with their written consent for evaluation of the student (Ex. P-E). A classroom observation of the student was on May 16, 2012 (Ex. SD-3). In a notice dated May 30, 2012, the parents were invited to participate in a CSE meeting scheduled for June 13, 2012 during which an IEP would be developed for the student for the 2012/13 school year (Ex. SD-2).
On a June 4, 2012 occupational therapy annual review plan, it was noted that the student presented which affected his academic performance and self-care skills. On the Berry Developmental Test of Visual Motor Integration (“VMI”), the student scored with an age equivalent , indicating . On the VMI Test of Motor Coordination (a test of staying between lines of mazes and connecting dots), the student achieved a raw score of , indicating an age equivalent years old with delay. On the Motor Free Visual Perceptual Test (“MVPT”), the student achieved a raw score , indicating an age equivalent of less than a four year old, with a . The student displayed difficulty processing sensory input and exhibited poor motor planning and body awareness. He exhibited low muscle tone, decreased postural control and much trouble focusing and attending. The student and had between the lines of mazes. Individual occupational therapy, three (3) times per week for thirty (30) minutes per session was recommended (Ex. SD-7 at 1-2).
In a related service progress report dated June 7, 2012, it was noted that the student presented with both receptive and expressive language delays. The student’s then-current therapy mandate of four (4) weekly individual sessions, thirty (30) minutes per session, was recommended to continue to help the student comprehension skills, vocabulary skills, pragmatic skills, sequencing and following directions (Ex. SD-6 at 12).
In a June 10, 2012 counseling progress report, the student was noted to have improved his social skills through individual and group counseling (Ex. SD-5). In a June 12, 2012 physical therapy annual review plan, it was noted that the student exhibited . was recommended to address the student’s issues (Ex. SD-8).
On June 17, 2012, the student participated in a psychoeducational assessment to ascertain his academic . Projective measures were indicative and . Overall behavior was also characterized by . were observed to . The student’s ability to process information was also deemed deficient as he exhibited difficulties in responding appropriately to questions and/or following multi-step directions. Adaptive behavior measures suggested adaptive functioning to fall in the “Low” level across all domains measured, suggesting level development of daily living skills, communication skills and motor development. On the Wechsler Intelligence Scale for Children - Fourth Edition (“WISC-IV”), the student’s Full Scale IQ score fell within the His Verbal Comprehension and perceptual reasoning abilities were also both in the Extremely Low range (VCI = ; PRI = ). Lastly, the student’s scores on the Woodcock Johnson Tests of Achievement - Third Edition (“WJ-III”) reflected significant and (Exs. SD-4 at 7, P-C at 1).
On June 13, 2012, the CSE convened to develop and IEP for the student for the 2012/13 school year. The CSE recommended that the student receive the majority of his instruction in at special class setting in a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of: special transportation, individual therapy, four (4) times per week for thirty (30) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; individual therapy, three (3) times per week for thirty (30) minutes per session; individual counseling, one (1) time per week for thirty (30) minutes per session; and small group (3:1) , one (1) time per week for thirty (30) minutes per session (Ex. SD-1 at 8-9, 11-13).
In a Final Notice of Recommendation (“FNR”) dated August 10, 2012, the DOE advised the parents that the CSE’s recommended program for the student would be implemented at in Brooklyn (Ex. P-G). In a letter dated September 14, 2012, the parent informed the CSE that she had visited the proposed program on September 10, 2012 and found it inappropriate to meet the student’s educational needs. The parent advised the CSE of her intent to make a unilateral placement of the student at public expense at for the 2012/13 school year (Ex. P-H).
In a notice dated December 18, 2012, the parents were invited to a CSE meeting scheduled for January 7, 2013 (Ex. P-M). On January 7, 2013, the CSE reconvened and revised its recommended program for the student to special class in a specialized (District 75) school with related services (Ex. P-N at 3).
On an April 11, 2013 neuropsychological evaluation conducted in Brooklyn, it was noted that the student has features ”), which is often seen in children with mental retardation. His sensory for people older and younger than he is, lack of danger awareness, and difficulty staying “on target” while talking can all be explained by the . The evaluator recommended that the student receive instruction in a “very small class and add a para if needed. PT, OT and ST should all continue” (Ex. P-C at 2).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement 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. was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 20-21; Ex. P-O).
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement 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. 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 YESS (R. 22-25; 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.[4] 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 June 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 June 13, 2012 CSE was not properly constituted in that it lacked a proper special education teacher and a general education teacher (Ex. P-A at 4).
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).
The hearing record reflects that the June 13, 2012 CSE was duly composed of the student’s parent, Ms. , a school psychologist who also served as the district representative, Ms. , the student’s special education teacher, Ms. , the student’s physical therapist, Ms. , the student’s therapist, Ms. , the student’s therapist, and Ms. additional parent member (R. 31; Ex. SD-1 at 14-15).
The parents also allege that “despite the fact that the team recommended a general education program and/or considered other general education programs, no general education teacher attended this meeting” (Ex. P-A at 5). 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).
The hearing record reflects that no regular education teacher participated in the June 13, 2012 CSE meeting although the CSE considered the student’s placement in an integrated co-taught classroom (R. 40; Ex. SD-1 at 13-15). However, as neither the CSE nor the parents recommended that the student receive instruction in a general education setting, I find that a regular education teacher of the student was not required at the June 13, 2012 CSE meeting, see 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), and that the absence of a general education teacher from the meeting 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 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).
C. Adequacy of Evaluations
The parents allege that the CSE failed to perform timely, adequate and appropriate evaluations of the student (Ex. P-A at 2). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2012/13 school year (Exs. SD-5 at 1-2). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). At the June 13, 2012 meeting, the CSE considered a May 16, 2012 classroom observation, a June 4, 2012 occupational therapy progress report, a June 7, 2012 therapy progress report, a June 10, 2012 counseling progress report, a June 12, 2012 physical therapy report, and a June 17, 2012 assessment (Exs. SD-1, SD-3, SD-4, SD-5, SD-6, SD-7, SD-8). Ms. , the student’s teacher at YESS, was also present at the June 13, 2012 CSE meeting, participated in the meeting’s discussion and gave input regarding the student’s thencurrent functioning (R. 31; Ex. SD-1 at 15).
D. Adequacy of IEP Goals
The parent alleges that the annual goals developed for the and (Ex. P-A at 4). 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 . The IEP included annual goals in social skills, mathematics, , comprehension, written expression, therapy, and physical therapy which described what the student 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. 35; Ex. SD-1 at 3-6). 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).
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. Lustig, Principal , and Ms. , the student’s teacher at during the 2012/13 school year, credibly testified that the student required more individualized attention and instruction to meet his educational goals than could be delivered in the proposed special class setting (R. 86-87, 127; Exs. SD-1 at 8).
Alternatively, while Ms. opined that a special class setting was adequate to meet the student’s educational needs, I have credited that opinion less weight than that of and Ms. as Ms. had far less direct knowledge of the student’s educational needs than Rabbi Lustig and Ms. . While Ms. chaired the June 13, 2012 CSE meeting, no evidence was offered into the hearing record to establish that Ms. Barsukova has ever formally tested the student, observed the student in a classroom setting, or provided him with direct instruction (R. 30; Exs. SD-1 at 14-15, SD-3, SD-4, SD-9, P-Q). The CSE also later revised its recommended program for the student in January 2013 to an 8:1+1 special class program in a specialized (District ) school without any additional evaluative data or reports, which suggests that the CSE ultimately determined that the student required more academic support than was available in a special class in a community school (Ex. P-N).
F. Proposed Placement - Size of Proposed Class & School The parent alleges that the student’s proposed placement was inappropriate because the proposed class and school was too large to meet the needs (Exs. P-A at 6, PG, 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 June 13, 2012 IEP at is speculative insofar as the parent did not accept the IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in a private school of their choosing (Exs. SD-1, P-G, P-H, P-S). Therefore, the DOE was not required to demonstrate the proper implementation of program and services in conformity with the student’s IEP at
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 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).
Based on the evidence entered into the hearing record, including the credible testimony of , Ms. and the student’s mother, I find was an appropriate placement for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 127; Exs. SD-9, P-Q). During the 2012/13 school year, educated approximately thirty-two (32) children disabilities in a modified New York State curriculum (R. 74-75, 84; Ex. P-P). Students were educated in five (5) separate classrooms within a mainstream school (R. 73-74, 76, 84). Each class was capped at eight (8) students with an age range of three (3) years or less (R. 74-75). Each class was led by a New York State certified special educator and a bachelors-level assistant (R. 74).
and Ms. noted at the outset of the 2012/13 school year, the student demonstrated deficits in: reading comprehension, written expression, mathematics, attention and social skills (R. 78, 118-120, 123, 125-127). Ms. provided the student with individualized, direct instruction in his deficit areas in a class of seven (7) students
(R. 85-86). Both confirmed that the student made a “tremendous amount of progress” by the end of the year: his reading and math levels increased, his writing was more organized, he called out less frequently in class, and he developed meaningful relationships with peers (R. 80-82, 87-88, 121-124).
H. 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 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); 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 a letter dated September 14, 2012, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the at public expense for the 2012/13 school years (Ex. 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 YESS was unreasonable (Exs. P-S, P-T, P-U), see Carter, 510 U.S. at 16.
I. 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 parents have selected as the unilateral placement, and their financial status is at issue, the parents carry the burden of production and persuasion with respect to whether they have the financial resources to “front” the costs of YESS and whether they are legally obligated for the student’s tuition payments. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 12-004 at 16 (SRO March 19, 2012).
The parents have established that there was a lack of financial ability to "front" the student's tuition costs for the 2012/13 school year. The parents incurred an obligation to pay the tuition and related service costs in the amount of $31,000, for the student’s enrollment there during the 2012/13 school year (Ex. P-S). The parents are legally responsible for the tuition, as they signed a contract with the school and have assumed financial and legal responsibility for the tuition whether or not they prevail at the impartial hearing (Exs. P-S, P-T). The parents’ 2012 household income was $39,562
(Ex. P-V). The parents do not own their own home and pay $975 per month in rent (Ex.
P-W). As of June 2013, the parents had paid $4,500 toward the student’s for the 2012/13 school year (Exs. P-T, P-U). The parents have not yet paid the full cost of the tuition because they cannot afford to do so.
J. Reimbursement, or Compensatory Education, for Related Service
As no evidence was provided by the parents of having secured private related services for the student during the 2012/13 school year (other than those included in the cost of tuition ), or that the student was denied related services by the DOE prior to the 2012/13 school year, the parents’ claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-
007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied (Ex. SD-2 at 4).
K. Transportation
The parents’ request for reimbursement for transportation costs to and during the 2012/13 school year is also denied (Ex. P-A at 7). Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. §
300.139(b)(1)(ii); Letter to Luger & Weinberg, 58 IDELR 199 (OSEP Dec. 6, 2011).
The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law §
4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch.
Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22,
1994).
Here, as there were no bills or other evidence of the actual transportation costs incurred by the parents, I must dismiss that aspect of the parents’ claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01-
012 (SRO Dec. 19, 2001).
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 for the 2012/13 school year, and shall directly pay the private school for any outstanding costs associated with said placement; and
The parents’ claims for compensatory education/additional serves and transportation are DENIED. Dated: March 3, 2014
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 DECEMBER 17, 2013
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 9/18/13, 9 pgs.
B. [Reserved]
C. Neuropsychological Evaluation, 4/11/13, 3 pgs.
D. [Reserved]
E. NYC DOE Request for Reevaluation, 5/10/12, 1 pg.
F. [Reserved]
G. NYC DOE Final Notice of Recommendation, 8/13/12, 1 pg.
H. Letter to CSE from parent, 9/14/12, 2 pgs.
I. Letter to CSE from parent, 10/11/12, 2 pgs.
J. [Reserved]
K. NYC DOE Notice Regarding Revaluation, 12/13/12, 2 pgs.
L. NYC DOE Social History Update, 12/17/12, 1 pg.
M. NYC DOE IEP Meeting Notice, 12/18/12, 2 pgs.
N. CSE Meeting Minutes, 1/7/13, 3 pgs.
O. NYC DOE Due Process Response, 10/3/13, 4 pgs.
P. Yeshivah Education for Special Students (YESS) Program Information, undated,
4 pgs.
Q. Annual Student Report, 2012/13, 5 pgs.
R. Student Schedule, 2012/13, 2 pgs.
S. Enrollment Contract, 8/20/12,[2] pgs.
T. Tuition Affidavit, 6/20/13, 1 pg.
U. Proof-of-payments for , various dates, 6 pgs.
V. 2012 Tax Return, 3/17/13, 3 pgs.
W. Housing Rental Letter, 4/29/13,[1] pg.
DEPARTMENT OF EDUCATION
3. Classroom Observation, 5/16/12, 1 pg.
4. Assessment, 6/17/12, 9 pgs.
5. Progress Report, 6/10/12, 2 pgs.
6. Progress Report, 6/7/12, 2 pgs.
7. Occupational Therapy Annual Review Plan, 6/4/12, 2 pgs.
8. Physical Therapy Annual Review Plan, 6/12/12, 2 pgs.
9. Annual Student Report, 2012/13, 1 pg.
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, 11/6/13
II. Confirmation of Extension, 12/17/13
III. Confirmation of Extension, 1/29/14
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 on the extensive issues raised in the parents’ due process complaint 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 justified the delay in the resolution of the matter and that the reasons for requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-I, IHO-II, IHO-III). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Learning disability means a disorder in one or more the basic 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, , minimal and The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).
[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.
[1] Individualized Education Program (IEP), 6/13/12, 15 pgs.
[2] Notice of IEP Meeting, 5/30/12, 3 pgs.