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: November 7, 2013
January 23, 2014
February 6, 2014
July 24, 2014
Actual Record Closed Date: December 4, 2013
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2013
ESQ., Attorney — Student
District Representative, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2014
ESQ., Attorney — Student
Parents
Parents
District Representative, CSE — DOE
Special Education Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2014
ESQ., Attorney — Student
Parents
Parents
DR., Psychologist (via telephone) — Student
Teacher (via telephone) — Student
Teacher (via telephone) — Student
District Representative, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2014
ESQ., Attorney — Student
Parents
(via telephone) — Student
District Representative, CSE — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the advocates for the student and the parents in a due process complaint notice dated September 19, 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 the , including its , for the 2013/14 school year (Exs. P-A, P-D).[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 20, 2013 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). On October 21, 2013, the parents filed an amended due process complaint (Ex. P-D). See 8 NYCRR § 200.5(i)(7). At a hearing held on November 7, 2013, the parents moved for an interim order on pendency (R. 7; Exs. IHO-I at 3, P-A at 5-6). See 20 U.S.C. § 1415(j); 34 C.F.R.
§ 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parents’ motion (R. 8; Ex. IHO-I at 3). In an Interim Order on Pendency dated December 17, 2013, I directed that the student continue to attend the , including its , at public expense, effective September 19, 2013, until such time as the due process proceedings in this matter were concluded (Ex.
IHO-I at 7). Hearings in this matter were thereafter held on: January 23, 2014; February 6, 2014; and July 24, 2014.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the September 19, 2013 due process complaint, the student was ( years old and has been diagnosed with a (Exs.
IHO-I at 5, P-A at 2, P-C at 11, P-D at 2, P-L at 9). For the 2013/14 school year, the student attended the at the in (Exs. IHO-
I at 5, P-A at 1-2, P-H, P-J). The Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities (Exs. IHO-I at 5). See 8 NYCRR §§ 200.1(d), 200.7.
The student's current eligibility for special education and related services as a student with a is not in dispute in this hearing (Exs. IHO-I at 5, SD-9,
P-A at 2, P-D at 2, P-E at 1). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).3
The student has a long history of first diagnosed in following an evaluation by Ph.D. (May 2004).
testing completed in January 2012 ( , Ph.D.)
substantiated the impact that reduced along with in , , , and had on his academic achievement. Results of a , April/May 2012) revealed that the student presented with . Thus, the student “ ” which has implications during and (Ex. P-L at 2). Performance on formal / testing administered in June of 2012 suggested a along with a (Ex. P-G at 5).
The student attended with appropriate
reported. He transitioned to at compliance date were granted (R. 11-12, 100-101, 236-238, 293-295; Exs. IHO-II, IHO-III, IHO-IV, IHO-
V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-III, IHO-IV). See 34 C.F.R. §
300.515(c); 8 NYCRR § 200.5(j)(5).
NYCRR § 200.1(zz) where he was described by his teacher as a “ ” student. The student made steady progress; however, problems with emerged in the areas of ,
, and . The student transferred to for where
he attended through the (Exs. P-G at 1-2, P-L at 2-3).
During the 2011/12 school year, by letter dated May 23, 2012, the parents requested that the CSE evaluate the student, since they believed that he required special education services. On June 22, 2012, the parents again wrote to the CSE and reiterated their concerns and requested an evaluation. In that letter, the parents also expressed their intent to place the student at the and seek tuition reimbursement in the event the CSE failed to provide an appropriate program or placement for him. By letter dated August 12, 2012, the parents confirmed that the CSE had failed to respond to their prior requests and announced their decision to unilaterally place the student at the for the 2012/13 school year (Ex. P-B at 3-4). The student transferred to the in September 2012, where he year (Ex. P-L at 4).
On February 12, 2013, the parents signed an enrollment contract with the for the 2013/14 school year. On the following day, i.e., February 13, 2013, the parents signed a contract for the student’s enrollment in for the 2013/14 school year (Ex. P-H). In a letter dated February 12, 2013, the parents advised the CSE that they had secured a spot for the student at the for the 2013/14 school year and would enroll him there at public expense absent the development of an appropriate public program (Ex. P-F at 1).
On March 21, 2013, the student participated in a brief psychoeducational update to assess his cognitive strengths and weaknesses, and to recommend types of interventions that would support his academic development. On the
- , the student’s
and measured within sample. The student, however, exhibited difficulty on tasks requiring , , , and . In addition, weaknesses in his and were exhibited. Thus, he had difficulty with (Ex. P-L at 9).
Academically, the student’s , , and represented areas of weakness. Socially, the student . The quality of the student’s peer relationships was
(Ex. P-L at 9).
The CSE convened on June 13, 2013 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 classes supported by: / , ( ) times per week for ( minutes per session, and ( )
/ , times per week for ( ) minutes per session (Exs.
P-D at 2, P-E at 13).
In a Findings of Fact and Decision dated August 5, 2013, Impartial Hearing Officer ordered the DOE to reimburse, and/or directly fund, the student’s tuition to the , including its , for the 2012/13 school year (Exs. IHO-I at 5, P-A at 4, P-B at 15, P-D at 5). Impartial Hearing Officer ’s August 5, 2013 Decision was not appealed by the DOE to the SRO and the time to do so has now expired (R. 7; Exs. IHO-I at 5, P-A at 3, P-B, P-D at 5).
In a Final Notice of Recommendation dated August 14, 2013 the DOE advised the parents that the student’s recommended program for the 2013/14 school year would be implemented at the ( ) in (Ex. SD-9).
In a letter to the CSE dated October 1, 2013, the parents stated that after visiting the proposed program at the , they had determined that it was inappropriate to meet their son’s educational needs and would continue his placement at the for the remainder of the school year (Ex. P-F at 2). 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 program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 25-26, 285-289).
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 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 (Exs. R. 27-28, 289-293;
Ex. P-D).
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); B oard 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 Y ork City D ep'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 Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling 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.'" W alczak 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. M amaroneck 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); M atrejek v. Brew ster 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."
W alczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See W alczak, 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; W alczak, 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 W alczak, 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 M rs. 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.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 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); Patsk in v. B oard 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); Tarlow e 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); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.
See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where B urlington/Carter factors are satisfied. M r. A . v.
New Y ork City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W . v.
New Y ork 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 Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. CSE Composition
Turning to the first prong of the B urlington/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 assert that the June 2013 CSE was not duly constituted in that it lacked both a general education teacher and a (Ex. P-D at 2).
An IEP must be prepared by a CSE having each of its required members. See, e.g., A pplication 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 evidence entered into the hearing record reflects that the June 2013 CSE was not duly constituted when it developed an IEP for the student for the 2013/14 school year.
The IDEA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be participating in a general education environment. See 20 U.S.C. § 1414(d)(1)(B)(ii); 34 C.F.R. § 300.321(a)(2); 8 NYCRR §
200.3(a)(1)(ii); see also E.A .M. v. New Y ork City D ep't of Educ., 2012 W.L. 4571794, at *6 (S.D.N.Y. Sept. 29, 2012). The regular education teacher "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 supplementary aids and services, program modifications, and support for school personnel." See 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR
200.3(d).
It is undisputed that a regular education teacher member was absent from the June 2013 CSE meeting (R. 33; Ex. P-E at 20). As the CSE recommended that the student receive the majority of his instruction in a setting (Ex. P-E at 13), I find that a regular education teacher was required to attend the June 2013 meeting. While the absence of a regular education teacher member is sometimes excused as harmless, see, e.g. J.F. v. New Y ork City D ep't of Educ., 2012 WL 5984915, at *7 (S.D.N.Y. Nov. 27,
2012); E.A .M . v. New Y ork City D ep't of Educ., 2012 WL 4571794, at *6-*7 (S.D.N.Y.
Sept. 29, 2012), the hearing record developed in this matter demonstrates that the absence of a regular education teacher from the June 2013 meeting significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, see A rlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158
(S.D.N.Y. Nov. 14, 2002). The hearing record reflects that the parents disagreed with the CSE’s recommendation to provide the student with no special education teacher support (Ex. P-E at 18). The presence of a duly certified regular education teacher familiar with courses offered at the district's schools would have been able to explain to the parents how recommended program modifications (a/k/a needs)
contained in the June 13, 2013 IEP would have been implemented to address the student’s struggles within the academic setting (Ex. P-E at 4, 5, 19).
The CSE also erred in failing to include a duly licensed / at the June 2013 meeting and I find that this error significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii). It is undisputed that a / or was absent from the June 2013 CSE meeting (R. 33; Ex. P-E at 20). While there is no specific requirement that a / be included in a CSE meeting and the inclusion of related services personnel is discretionary, see 34 C.F.R. § 300.321(a); 8 NYCRR § 200.3(a)(1), I find that the CSE abused its discretion in not inviting a / to the June 2013 meeting, see 8 NYCRR § 200.3(a)(1)(ix). The
June 2013 CSE convened for an initial eligibility meeting and classified the student as one with a (Ex. P-E at 1). See 8 NYCRR § 200.1(zz)(11).
The CSE recommended thirteen (13) annual educational goals for the student to be implemented by the appointed / (R. 47-48, 56; Ex. P-E at 6-12).
The only service recommended by the CSE for the student for the 2013/14 school year was / (Ex. P-E at 13).
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.” M rs. B.
v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at
192.
The evidence entered into the hearing record demonstrates that the June 2013
CSE’s failure to recommend any special education instruction for the student was not appropriate and, on that basis, the DOE denied the student a FAPE for the 2013/14 school year. The student has been diagnosed with a which manifests itself in the classroom primarily as an (R. 119-
120, 212, 262-263; Ex. P-L at 2, 9). Based on the credible testimony of Dr.
(psychologist), Dr. ( / ), and Ms.
( teacher), I find that the student required special education instruction in order to manage his needs in the classroom while meeting his curriculum goals (R. 220-221, 264; Exs. P-C at 11-14, P-E at 1-4, P-G at 5-6, P-L at 9-
12).
D. Appropriateness of the
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. B oard 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; W alczak, 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 W eaver v. Millbrook Cent. Sch. Dist., No. 09-CV-
692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of , Mr. , Ms. , Ms.
and the student’s parents, I find that the , including its , was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 187-192, 213, 216-219; Exs. P-J, P-N, P-O, P-P).
Mr. supplied a sworn affidavit in which he described the as an accredited, independent school for students in grades , offering an , experience. The school had approximately enrolled students during the 2013/14 academic year who were functionally grouped by tracks in classes of approximately ( )
students. Approximately of the enrolled students this past academic year had learning disabilities. To address the needs of enrolled students with diagnosed learning disabilities, the developed its .
students are instructed by a New York State certified special education teacher. The consists of: (a) class of approximately students which meets times per week; (b) study hall of approximately students which meets times per week; and (c) a instructional session weekly. teachers also to and classes to provide extra support for all enrolled students. Mr. affirmed that there is considerable coordination of instruction between and content area teachers. Students and parents also have access to , an on which classwork and homework assignments, quiz and test results, and teacher narrative reports are posted (Ex. P-N).
Ms. supplied a sworn affidavit in which she stated that she was the student’s teacher this past academic year (2013/14). Ms. stated that there were ( ) total students in the class. To address the student’s difficulties with , Ms. used a system, system, and . To help the student with his , Ms.
gave him , and
, and had the student . To assist the student with his needs, Ms. provided the student with
(Ex. P-O).
Mr. testified at the hearing that he was the student’s history teacher this past academic year (2013/14) (R. 184, 186). Mr. testified that all of the students in his class had similar academic needs and approximately were in the (R. 186). To address the student’s needs, Mr. ,
, and ” questions (R. 187-188).
To help the student , Mr. provided
and in and into (R. 187,
189). Lastly, to assist the student with , Mr.
into , and for
(R. 189-191). Mr. stated that he
the student with his , Ms. (R. 192-193, 204).
Ms. testified at the hearing that she is dually certified by New York State in special education and education and served as the student’s teacher during the 2013/14 school year (R. 210-211). Ms. stated that she met with the student daily, and , . Ms.
also worked with the student per week, for ( ) minutes per session (R. 211). To address the student’s needs, Ms.
used , , , and
(R. 212, 215-219). To help the student with , Ms.
and (R. 211-212). To assist the student with , Ms. provided the student with to the (R. 213-214). Lastly, to help the student improve his , Ms. used (R. 217). Ms. stated that she coordinated her instruction of the student with his content-area teachers (R. 214-215,
220).
E. 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. V oluntown 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 Y ork City D ep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y.
2009); Thies v. New Y ork 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 Y ork 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.
Clarkstow n 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. A m y 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 for the 2013/14 school year. In letters dated February 12, 2013, August 16, 2013, and October 1, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2013/14 school year (Ex. P-F). 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. P-E), 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-H, P-Q), 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, including the cost of its , 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 the for the 2013/14 school year, including the cost of its , and shall directly pay the private school for any outstanding costs associated with said placement.
Dated: December 24, 2014
, ESQ.
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
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 9/19/13,[9] pgs.
B. Findings of Fact & Decision, IHO , 8/5/13, 17 pgs.
C. Evaluation, 1/2012, 14 pgs.
D. Corrected Due Process Complaint Notice/Impartial Hearing Request, 10/21/13, [7]
pgs.
E. Individualized Education Program (IEP), 6/13/13, 20 pgs.
F. Parent Correspondence to CSE, various, 4 pgs.
G. Comprehensive / Evaluation, 6/2012,[6] pgs.
H. & Contract (2013/14), 2/2013, 4
pgs.
I. Proof-of-Payment, 2/27/13, 1 pg.
J. Report Card (2nd Quarter), 1/7/14, 1 pg.
K. Letter to CSE from parent, 6/3/13, 2 pgs.
L. Brief Psychoeducational Update, 3/21/13, 12 pgs.
M. Email Correspondence to CSE, 4/2013, 2 pgs.
N. Affidavit of , 5/29/14,[4] pgs.
O. Affidavit of , 5/30/14,[2] pgs.
P. Report Card (4th Quarter), 6/10/14, 1 pg.
Q. Invoice (2013/14), 2/27/13,[1] pg.
DEPARTMENT OF EDUCATION
3. [Reserved]
5. Classroom Observation, 5/8/13, 2 pgs.
8. Instructor/Teacher Report, 3/22/13, 5 pgs.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 12/17/13, 8 pgs.
II. Confirmation of Extension, 10/24/13, 1 pg.
III. Confirmation of Extension, 1/2/14, 1 pg.
IV. Confirmation of Extension, 2/3/14, 1 pg.
V. Confirmation of Extension, 2/13/14, 1 pg.
VI. Confirmation of Extension, 3/24/14, 1 pg.
VII. Confirmation of Extension, 4/24/14, 1 pg.
VIII. Confirmation of Extension, 5/29/14, 1 pg.
IX. Confirmation of Extension, 6/27/14, 1 pg.
X. Confirmation of Extension, 8/3/14, 1 pg.
XI. Confirmation of Extension, 8/18/14, 1 pg.
XII. Confirmation of Extension, 9/29/14, 1 pg.
XIII. Confirmation of Extension, 11/3/14, 1 pg.
XIV. Confirmation of Extension, 12/3/14, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the scheduled of the parties’ witnesses 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 were in accordance with the requirements of due process. Accordingly, requests for extensions of the case
[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] [Reserved]
[2] [Reserved]
[4] [Reserved]
[6] Medical Report, 8/8/12, 4 pgs.
[7] Report Card (2nd Quarter), 1/8/13, 1 pg.
[9] Final Notice of Recommendation (FNR), 8/14/13, 1 pg.