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: May 6, 2014
Actual Record Closed Date: May 24, 2014
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2014
ESQ., Attorney — Student
Parents
Teacher (via telephone) — Student
Teacher (via telephone) — Student
ESQ., Attorney — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parents in a due process complaint notice dated September 26, 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 Winston Preparatory School for the 2013/14 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 26, 2013. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on December 4, 2013 to clarify the issues and set a date for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). A hearing in this matter was thereafter held on May 6, 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 26, 2013 due process complaint, the student was f (“ , not (Exs. SD-3 at 2, P-A at 2, P-B at 3, 10). For the 2013/14 school year, the student attended the ninth grade at (Exs. SD-4, P-A at 1-2, P-K). 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 (Exs. SD-1 at 1, 12, P-A at 2). See 34
C.F.R. § 300.8(c)(6);[8] NYCRR § 200.1(zz)(6).3
The student began receiving , in a preschool setting. In Kindergarten, he began attending , which is a . P-B at 2-3). The student remained
The student underwent a in 2009. range for the borderline range for working memory, and within the reading and spelling, but for mathematics and written expression (Ex. P-B at 3).
In March of 2012, when the student and in the , he participated of that assessment indicated continued strengths in the areas and most aspects of . In contrast to his many well-developed verbally-mediated abilities, however, the student continued to demonstrate significant difficulties in a variety of areas that impact upon his school performance, as well as most aspects . First, he performed below average and within the borderline range on measures of that involve various visual thinking and problem solving abilities. Second, the process did not come easily to the student as he generally took in information in smaller chunks than peers. Finally, the student exhibited considerable difficulty with tasks. The evaluator stated that the student continued to require placement in a special education setting that provided ample support for the granted (R. 163-164; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI). See 34 C.F.R. § 300.515(c);
3 Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. 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). student’s including small classes and the ability to provide an education individualized to his needs (Ex. P-1, 8-10).
In a letter dated February 7, 2013, the parent wrote to the CSE to request an IEP meeting for the student as soon as possible to plan for the 2013/14 school year. The parent also advised the CSE that should it fail to develop an appropriate program for the student, she intended to unilaterally place the student at at public expense (Ex. P-C).
In a notice dated May 7, 2013, the parent was invited to attend an IEP meeting on May 16, 2013. At the May 16, 2013 meeting, the CSE recommended for the 2013/14 school year that the student receive the majority of his instruction class in a New York State approved nonpublic school on a ten (10) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual , one
(1) time per week for forty (40) minutes per session; and small group (3:1) , two (2) times per week for forty (40) minutes per session (Exs. SD-1 at 7-8, 11-12, SD-2, P-A at 2).
In a letter dated August 16, 2013, the parent wrote to the CSE to state that as her son had not been offered a specific placement for the 2013/14 school year, she intended to unilaterally place the student at public expense (Ex. P-E).
In a notice dated October 4, 2013, the DOE advised the parent that its CSE had forwarded the student’s case to its Central Based Support Team (“CBST”) to place the student into an appropriate school that could meet his educational needs (Ex. P-F).
In a letters dated October 25, 2013 and October 29, 2013, the parent wrote to the CBST to state that, as she had not received an IEP or placement for her son in time for the 2013/14 school year, she unilaterally placed the student at School and would later seek tuition reimbursement for that placement. The parent also noted in her letter that on October 17, 2013, she had been contacted by a in New Jersey to set up a site visit, and that after having visited that school on October 22, 2013, she was declining the placement (Exs. P-G, P-H). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE waived making any opening statement, other than to state that it was conceding Prong I of the Burlington/Carter test applicable to the parents’ claim for tuition reimbursement (R. 29). In its post-hearing closing statement, the DOE asserts, for the first time, that the parents lack standing to seek tuition reimbursement as they have not paid any tuition for the unilateral placement. The DOE also asserts that considerations mitigate against a reimbursement award (Ex. IHO-VII).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at the 2013/14 school year. The DOE has conceded that it failed to develop an appropriate educational program for the student. relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the . While the parents have withdrawn their claims for compensatory education and related service authorizations, they continue to seek reimbursement for private (R. 31-32; Exs. IHO-VIII, P-A at 5-6).
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 decisionmaking 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. §
(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. 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Standing
Under the IDEA and State law, a parent is entitled to an impartial hearing regarding "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." See 20 U.S.C. §1415(b)(6)(A); N.Y. Educ. Law §4404(1); Winkelman, 550 U.S. at 531. The parents were therefore entitled to file a due process complaint notice asserting that the district had failed to offer the student a FAPE on the basis that the May 2013 CSE had not complied with the procedural requirements set forth in the IDEA and that the May 16, 2013 IEP was substantively inadequate and not reasonably calculated to enable the student to receive appropriate educational benefits (Exs. SD-1, SD-2, P-A). See Winkelman, 550 U.S. at 531, 533; 34 C.F.R. § 300.507(a), 8 NYCRR § 200.5(i).
A party has standing to assert a claim under the IDEA and State law where they plead sufficient facts to demonstrate that they have been injured by the responding party’s conduct or omission. Although courts have disagreed on what is sufficient to constitute "injury in fact," the only courts that have addressed this issue in New York have found that the denial of a FAPE or of a procedural right created by the IDEA is sufficient to satisfy the "injury in fact" requirement. See S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 359-360 (S.D.N.Y. 2009) (finding that a denial of a FAPE constituted an injury in fact which was redressable by direct retrospective payment, but declining to address whether direct retrospective payment was an allowable remedy under the IDEA); E.M. v. New York City Dep't of Educ., 2011 WL 1044905, at *6 (S.D.N.Y. March 14,
2011) (finding a denial of a FAPE or a procedural right under the IDEA was a statutorily created injury in fact to satisfy standing); see also Heldman v. Sobol, 962 F.2d 148, 15456 (2d Cir. 1992) (holding that the IDEA may create a statutory right, the alleged violation of which is an injury in fact); Fetto v. Sergi, 181 F. Supp. 2d 53, 66 n.22 (D. Conn. 2001) (finding a denial of a FAPE was a statutorily created injury in fact).
Because courts in New York have determined that a denial of a FAPE by a school district is an injury in fact under the IDEA and because the parents' September 2013 due process complaint notice includes such an assertion, the only other relevant factors here in determining standing are (1) whether the petitioners can maintain a proceeding as parents of the student in this case, and (2) whether the relief requested is likely to redress the injury. See Raines v. Byrd, 521 U.S. 811, 818-19 (1997); S.W., 646 F. Supp. 2d at 359, E.M., 2011 WL 1044905, at *6. In this case, there is no dispute that petitioners are the parents of the student within the meaning of the IDEA. See 20 U.S.C. § 1401(23); 34 C.F.R. § 300.30(a); 8 NYCRR 200.1(ii); Fuentes v. Bd. of Educ., 569 F.3d 46 (2d Cir. 2009); Fuentes v. Bd. of Educ., 12 N.Y.3d 309, 314 (2009). Consistent with the court's determinations in S.W. and E.M., the parents' request for prospective payment would redress the denial of a FAPE in circumstances where a private school has provided an education to the student. See S.W., 646 F. Supp. 2d at 359; E.M., 2011 WL 1044905, at *6. Further, the parents' alternate request for tuition reimbursement could also redress the denial of a FAPE in circumstances where a private school has provided an education to the student and the parent has made or will make payments to the private school for such an education. See Burlington, 471 U.S. at 369-370. Lastly, I note that a party has standing even if the relief requested is ultimately unavailable. See New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *7-8 (S.D.N.Y. Mar. 17, 2010).
Alternatively, what the DOE mischaracterizes as “standing” is really a dispute of whether the parents may be reimbursed for payments made by the student's family toward the costs of . Where there is a close familial relationship between the student and the individual who furnished the funds to the parents, it would not be consistent with the purpose of the IDEA or equitable principles to preclude tuition reimbursement relief solely because the funds were contributed by a student's grandparent, rather than the parents. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-152 at 14 (SRO July 5, 2013). The IDEA was not enacted to discourage familial support of a student with a disability, and in some circumstances the IDEA itself contemplates that a grandparents may be among the individuals that may maintain an impartial due process proceeding on behalf of a student. See 20 U.S.C. §1401(23)(C); 34 C.F.R. § 300.30(a)(4); 8 NYCRR § 200.1(ii)(1). Here, the student’s parent credibly testified that she was obligated under a January 22, 2013 Enrollment Agreement to pay $52,500 for the student’s tuition to for the 2013/14 school year, that the student’s grandmother had loaned the parents the student’s tuition costs, and that the parents were obligated to repay the student’s grandmother (R. 142; Exs. P-N, P-O). Accordingly, I find it extraordinarily unlikely that when fashioning an equitable remedy for a school district's denial of a FAPE a court would preclude reimbursement of tuition costs expended by a student's grandparent due solely to the absence of an intra-family loan agreement between the parents and the grandparent. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-152 at 14 (SRO July 5, 2013).
C. Proposed Public Program
At the hearing, the DOE conceded the first criterion of the Burlington/Carter analysis, thereby acknowledging that it failed to offer the student a FAPE for the 2013/14 school year
(R. 29). Accordingly, I find in the parents’ favor on that issue.
D. 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. , I find that the an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 59, 108-109; Exs. SD-4, P-K, P-P).
Ms. testified at the hearing that she is a New York State certified special educator who serves as (R. 35-36). Ms. described as a private, co-educational program for middle and high school students with . Students participate in a daily, oneto-one instructional period , which targets their greatest area(s) of educational need (R. 35-36, 38, 42, 45; Ex. P-J).
In addition to her work as the Dean of the school, Ms. is also the student’s science teacher this academic year (2013/14) (R. 45-46). In a class of twelve students, Ms. provided the student with instruction in earth science, astronomy, oceanography and weather (R. 47). To address the student’s weaknesses of attention, organization and writing, Ms. Feldman provided the student with differentiated, multisensory instruction and used program modifications of scaffolding, chunking, repetition, and teacher checks for understanding (R. 48-52). Ms. observed progress in the student’s ability to read, as he would circle words he did not understand, made connections when reading literature, took margin notes of material read, and wrote two-to-three sentences summarizing each chapter read (R. 54). Ms. observed progress in the student’s written expression skills as he was able to brainstorm and outline ideas before writing and was able to write a threeto-five page history paper (R. 54-55, 57). Ms. also observed progress in the student’s ability to perform basic math operations without a calculator (R. 55-56).
Ms. testified at the hearing that she is a New York State licensed creative arts therapist and the student’s this academic year (2013/14) (R. 95, 97). Ms. Archer provided daily instruction to the student and was in constant contact with his content-area teachers (R. 97-98). To address the student’s weaknesses in grammar, attention, following directions and organization skills, Ms. scaffolded instruction; used checklists, graphic organizers and planners; and checked the student’s understanding of directions (R. 99, 102, 104-107). Ms. stated that the student made progress in literature, writing and following step-by-step math directions (R. 99-103).
Alternatively, while the DOE argues that was not an appropriate placement for the student because he did not receive at the school (Ex. IHO-VII at 4), it is well settled that parents need not show that the private placement provides every special service necessary to maximize the student’s potential, see Frank G., 459 F.3d at 364-65.
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. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
In letters dated February 7, 2013, August 16, 2013, and October 25, 2013, and October 29, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at public expense for the 2013/14 school year (Exs. P-C, P-E, P-G, P-H). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the was unreasonable (R. 142; Ex. P-N), see Carter, 510 U.S. at 16.
Alternatively, while the DOE contends that the parents never intended to place the student in public school for the 2013/14 school year, based on their signing of an enrollment contract prior to the May 16, 2013 CSE meeting (Exs. IHO-VII at 4-5, SD-1, SD-2, P-N), the parents' pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of their failure to cooperate with the development of an IEP or their interference with the selection of an appropriate placement by the DOE, see A.R. v. New York City Dep't of Educ., 2013 WL 5312537 (S.D.N.Y. Sept. 23, 2013); New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *15 (E.D.N.Y. July 20, 2011); cf. T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18, particularly where, as here, the DOE failed to offer the student a placement prior to the start of the 2013/14 school year (Exs. P-E, P-F, P-G, P-H).
F. Reimbursement for Therapy Services
While the parent testified at the hearing that the student received individual speech/language therapy, one (1) time per week, at the Child Mind Institute, as there were no bills or other evidence of the costs incurred by the parents, or the amount of which such costs were reimbursed by private insurance, I must dismiss that aspect of the parents' claim in the absence of any evidence of such expenditures (R. 144-145, 152, 154-155). See Application of the Bd. of Educ., Appeal No. 01-012 (SRO Dec. 19, 2001).
G. Transportation
The parents' request for reimbursement for transportation costs to and from the Winston Preparatory School during the 2013/14 school year is also denied (Ex. P-A at 5). 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. 01012 (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 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, including tuition, associated with the student’s unilateral private placement at the for the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement;
The parents’ claim for reimbursement for private services and door-to-door transportation are DENIED. Dated: June 10, 2014
Jeffrey J. Schiro, Esq. gc
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JS: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 MARCH 3, 2014
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 9/26/13, 7 pgs.
B. & Educational Evaluation, 3/2012, 24 pgs.
C. Letter to from parent, 2/7/13, 2 pgs.
D. Notice of IEP Meeting, 5/7/13, 4 pgs.
E. Letter to from parent, 8/16/13, 3 pgs.
F. Letter to parent from , 10/4/13, 1 pg.
G. Letter to from parent, 10/25/13, 2 pgs.
H. Letter to from parent, 10/29/13, 2 pgs.
I. [Reserved]
J. Program Description, undated, 1 pg.
K. Fall Report, 10/17/13, 2 pgs.
L. School Progress Reports, 6/2013, 29 pgs.
M. Student Schedule, 2013/14, 1 pg.
N. Student Enrollment Agreement, 1/22/13, 2 pgs.
O. Cancelled Checks, various dates, 3 pgs.
P. Spring Progress Update, spring 2014, 9 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 5/16/13, 14 pgs.
2. IEP Meeting Minutes, 5/16/13, 2 pgs.
3. Social History Update, 5/16/13, 2 pgs.
4. Fall Report, fall 2013, 8 pgs.
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, 12/4/13, 1 pg.
II. Confirmation of Extension, 1/8/14, 1 pg.
III. Confirmation of Extension, 2/7/14, 1 pg.
IV. Confirmation of Extension, 3/10/14, 1 pg.
V. Confirmation of Extension, 3/24/14, 1 pg.
VI. Confirmation of Extension, 4/24/14, 1 pg.
VII. DOE Closing Argument, 5/12/14, 5 pgs.
VIII. Parents’ Closing Statement, undated, 2 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 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
[8] NYCRR § 200.5(j)(5).
[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;