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: January 28, 2014
Actual Record Closed Date: February 21, 2014
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2014
ESQ., Attorney — Student
Parents
Parents
Teacher, (via telephone) — Student
Headmaster, (via telephone) — Student
Teacher, School (via telephone) — Student
), Teacher, School (via telephone) — Student
DR., DOE Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was 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 the , including its program, 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 October 21, 2013. See 8 NYCRR § 200.5(j)(3)(i). A hearing in this matter was thereafter held on January 28, 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 January 28, 2014 impartial due process hearing, the student was thirteen (13) years old and has been diagnosed with: mixed receptive and expressive language disorder; learning disorder, not otherwise specified; and slow processing (Exs. P-A at 2, P-B at 1). For the 2013/14 school year, the student attended at the in (Exs. P-A at 2, P-H). The Commissioner of Education has not approved School as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A at 3, P-B at 1, P-J at 1). See 34 C.F.R. §
300.8(c)(11); 8 NYCRR § 200.1(zz)(11).[3]
The student completed kindergarten through . The student attended the (a public middle school) for his (Ex. P-G at 1). At a meeting held on October 19, 2011, the CSE convened to develop and IEP for the student for the 2011/12 school year. At that time, the student’s basic academic skills were intact and strong, but his language comprehension skills were relatively weak. The student’s decoding and spelling skills were grade-appropriate, but visual-perceptual instability at times affected his ability to orient and sequence letters correctly while reading. The student’s math calculations skills were also relatively strong. The to analyze grammatically and glean the necessary meaning whether completing reading comprehension tasks or math word problems or when expressing his ideas on paper. The student’s slow processing speed presented as a functional limitation on his ability to demonstrate his actual abilities under time limits (Ex. P-B at 1).
Overall intellectual functioning, as assessed by the WISC-IV in November 2010, indicated that the student’s cognitive functioning fell in the average range (Full Scale IQ 30th percentile). The student also earned a verbal comprehension score of 110 (75th percentile/high average), a perceptual reasoning index score of 94 (34th percentile/average), a working memory index score of 91 ( ), and a processing speed index score of percentile/borderline) (Exs. P-B at 1, P-J at 1).
For the 2011/12 school year, the CSE recommended that the student receive the majority of his instruction in a general education setting at a community school along with related services of: individual therapy, two (2) times per week for forty (40) minutes per session, and small group ( ) therapy, one (1) time per week for forty (40)
with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 92-93; Exs. IHO-I, IHO-II). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
minutes per session (Ex. P-B at 5, 8-9).
In March of 2013, the parents signed an enrollment contract with the York Preparatory School for the 2013/14 school year (Ex. P-h). In a letters dated June 4, 2013 and August 16, 2013, the student’s father wrote to the CSE and stated that a meeting had not yet been scheduled to develop an IEP for his son and that absent the development of an appropriate public program, he intended to unilaterally at public expense for the 2013/14 school year (Exs. P-C, P-D).
In a notice dated September 9, 2013, the parents were invited to attend a CSE meeting scheduled for September 23, 2013 (Ex. P-E). The CSE convened on September 23, 2013, as scheduled, to develop an IEP for the student for the 2013/14 school year. The CSE noted that the student’s reading comprehension skills and ability to generate grammatically correct sentences continued to be weak. The with translating the language in mathematical word problems into the proper operations. The student’s math fluency was also noted to be slow. The student obtained a score of 2 on the New York State ELA exam and a score of 1 on the New York State math exam. For the 2013/14 school year, the CSE recommended that the student receive the majority of his instruction in an integrated co-teaching (“ICT”) setting, along with individual therapy, two (2) times per week for forty (40) minutes per session, and small group (3:1) speech/language therapy, one (1) time per week for forty (40) minutes per session (Ex. P-J at 2, 22-23).[4]
In a letter dated January 14, 2014, the student’s mother wrote to the CSE and stated that the parents had visited the proposed program and determined that it was inappropriate for the student. The student’s mother reiterated that the student would be unilaterally placed at public expense at the for the 2013/14 school year (Ex. P-K).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2013/14 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate program for the student. The relevant equities also mitigate against a reimbursement/direct payment award. The DOE however failed to offer any evidence at the hearing to establish any of these points
(R. 5-6).
B. The Parents
The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement at the , including its , for the 2013/14 school year. The CSE’s proposed program for the student was both procedurally and substantively deficient and served to deny the student a free appropriate public education. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s tuition to the York Preparatory School (R. 7-8; 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.[5] 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 Case No. 148071
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); 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. Proposed Public Program
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.
I find that the CSE’s failure to timely prepare and deliver an IEP to the student before the beginning of the 2013/14 school year served to deny the student a FAPE. The IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability, see 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3D AT 194; Tarlowe v. New York City Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), and that a school district must have a seat available for the student in the proposed program for the first day of school, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 08-088 at 12-13 (SRO Oct. 29, 2008).[6]
I take administrative notice that the DOE’s 2013/14 (ten month) school year commenced on September 9, 2013. The evidence entered into the hearing record reflects that the CSE convened on September 23, 2013 to develop an IEP for the student for the 2013/14 school year. The projected implementation date of that IEP was October 8, 2013 (Ex. P-J at 1, 28). The parents received the IEP in or around November 2013 and received a Final Notice of Recommendation (“FNR”) identifying the location of the proposed program on or about December 12, 2013, which they visited on January 9, 2014
(R. 75; Ex. P-K). The CSE’s delay here in developing and implementing a timely IEP for the student for the 2013/14 school year impeded the student’s right to a FAPE and 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. Appropriateness of Program
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 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 Mr. , Ms. , Mr. , Ms. and the student’s mother, I find that School, 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. 15, 17, 19-22, 62-64, 87-90).
Mr. as an accredited independent school for students in grades 6-12 (R. 36).
The school has approximately 352 enrolled students this academic year who are functionally grouped by age, grade, and ability among three (3) tracks in classes of approximately fifteen (15) students (R. 36, 45). To address the needs of enrolled students with diagnosed learning disabilities, the coordination of instruction and content area, teachers (R. 44).
Ms. testified under oath that she is the student’s teacher this academic year (2013/14) (R. 11, 13-14). The program consists of a thirty (30) minute morning checkin period, five (5) days per week; a forty-five (45) minute afternoon supervised study hall, four (4) days per week; and two (2) individual instructional periods per week (R. 12). To address the student’s reading comprehension deficits, Ms. has the student annotate and prepare character charts and written summaries of read material (R. 14-16, 52-53). To assist the student in following directions, Ms creates checklists, underlines and highlights written directions, and uses Ed-Line, an online system for teachers to post grades, homework and progress reports (R. 12-13, 16-17). To address the student’s slow processing, Ms. breaks concepts and information down into more manageable chunks and uses character charts, chapter summaries and graphic organizers (R. 18). Ms. also creates division reference charts and outlines, to help the student with math and writing, respectively (R. 20-21). Ms. credibly testified that the student has made progress in deficit areas as a result of her instruction (R. 15, 17, 19-22).
Mr. testified at the hearing that the student participates in pre-algebra class this academic year (R. 54). The student is in for math, which Mr. stated is reserved for students with diagnosed (R. 54-55). To address the student’s curriculum and graphic organizers (R. 56-68). Mr. credibly testified that the student has benefitted from his instruction (R. 62-64).
Lastly, testified under oath at the hearing that she provides instruction to the student in this academic year (R. 85). To address the student’s processing, grammar, vocabulary and distractibility deficits, Ms. uses a smart board to help the student visualize information, has the student practice using flash cards, and provides the student with one-on-one instruction and preferential seating (R. 85-90). Ms. credibly testified that the student has benefitted from her instruction (R. 87-90). Case No. 148071
D. 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 letters dated June 4, 2013, August 16, 2013, and January 14, 2014, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the York Preparatory School at public expense for the 2013/14 school years (Exs. P-C, P-D, P-K). 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 York Preparatory School was unreasonable (Ex. P-H), see Carter, 510 U.S. at 16.
E. Independent Education Evaluation
The parents seek reimbursement of the cost of Dr. s April 8, 2013 comprehensive evaluation (Exs. P-A at 5, P-F). Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. §§ Case No. 148071
300.502(a), (b); 8 NYCRR § 200.5(g)(1). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees." See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
I find that the parents are entitled to reimbursement of the cost of Dr. Eng’s April 2013 speech/language evaluation. Contained within the parents’ October 21, 2013 due process complaint was a request for reimbursement for a private evaluation, i.e., Dr. Eng’s April 2013 evaluation (Exs. P-A at 5, P-F). Given the DOE's failure to either fund Dr. evaluation or initiate an impartial hearing to show that its evaluations of the student were appropriate, the DOE shall be ordered to reimburse the parents for the cost of Dr. evaluation of the student. See Application of a Student with a Disability (Tuxedo Union Free Sch. Dist.), Appeal No. 08-087 at 18 (SRO Dec. 15, 2008); rev'd on other grounds, G.B. & L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552 (S.D.N.Y. Sept. 30, 2012), aff'd, summary order No. 11-3552 cv (2d Cir. Oct. 18, 2012).
F. 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 2013/14 school year (other than those included in the cost of tuition to ), or that the student was denied related services by the DOE prior to the 2013/14 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).
G. Transportation Case No. 148071
The parents’ request for reimbursement for transportation costs to and from the during the 2013/14 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. 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 York Preparatory School the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement;
The parents’ claims for reimbursement for Dr. April 8, 2013 comprehensive evaluation is GRANTED; and the DOE shall reimburse the parents for the cost of said evaluation within thirty (30) days of its receipt of adequate proof-of-payment; and Case No. 148071
The parents’ claims for compensatory education/additional serves and transportation are DENIED. Dated: March 10, 2014
________________________
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS;mv Case No. 148071
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 JANUARY 28, 2014
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 10/21/13, 6 pgs.
B. Individualized Education Program (IEP), 10/19/11, 11 pgs.
C. Letter to CSE from parent, 6/4/13, 2 pgs.
D. Letter to CSE from parent, 6/16/13, 2 pgs.
E. Notice of IEP Meeting, 9/9/13, 2 pgs.
F. Comprehensive Evaluation, 4/8/13, 6 pgs.
G. Social History Update, 7/26/13, 2 pgs.
H. Contract, 2013/14, 4 pgs.
I. Proof-of-Payment, 3/12/13, 1 pg.
J. Individualized Education Program (IEP), 9/23/14, 31 pgs.
K. Letter to CSE from parent, 1/14/14, 3 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 1/12/14, 1 pg.
II. Confirmation of Extension, 1/28/14, 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 twice 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
[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[4] Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students. 8 NYCRR § 200.6(g). School personnel assigned to an integrated co-teaching class shall minimally include a special education teacher and a regular education teacher. See 8 NYCRR § 200.6(g)(2). An April 2008 guidance document entitled "Continuum of Special Education Services for School-Age Students with Disabilities" further describes integrated co-teaching services. See http://www.p12.nysed.gov/specialed/publications/policy/schoolagecontinuum.html.
[5] 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.
[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
[6] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following." N.Y. Educ. Law § 2(15).