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 14, 2014
July 10, 2014
Actual Record Closed Date: November 7, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2014
ESQ., Attorney — Student
Parents
Aunt — Student
Interpreter — Student
District Representative, CSE — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2014
ESQ., Attorney — Student
Aunt — Student
Interpreter — Student
Psychologist (via telephone) — Student
Director (via telephone) — Student
Teacher (via telephone) — Student
District Representative, CSE — DOE
Teacher (via telephone) — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parent in a due process complaint notice dated October 2, 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 parent, and/or directly pay for, costs associated with the student’s unilateral private placement at the 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 November 7, 2013. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on May 14, 2014 and July 10, 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 October 2, 2013 due process complaint, the student was years old and has been diagnosed with an and (Exs. SD-1 at 2, SD-4 at 1, P-A at 1, P-U at 1). For the 2013/14 school year, the student attended the at the in (Exs. P-A at 1, P-
D, P-I, P-J, P-K, P-L, P-M, P-N, P-O, P-P, P-Q, P-R, P-S, P-T, P-U at 1). The
Commissioner of Education has not approved the 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 is not in dispute in this hearing (Exs. SD-1 at 1, SD-2, P-A). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR §
200.1(zz)(1).3
At age , the student’s pediatrician observed symptoms consistent with an and recommended services. The student did not start receiving services until years old when he attended the (Ex. P-U at 2).
At the beginning of the 2012/13 school year, the student was administered the (“ ”). The assessment indicated that the student had . In the area of , the student scored out of a total score of . In the area of , the student scored out of a total score of .
In , the student scored out of . In the area of , the student scored out of a total score of (Ex. SD-1 at 1).
At a meeting held on May 2, 2013, the CSE convened to develop an IEP for the student for the 2013/14 school year. The CSE recommended that the student receive the majority of his instruction in a in a ( ) school on a month basis. The CSE also recommended that the student receive related services of: transportation; education;
, times per week for minutes per session;
, times per week for minutes per session;
/ , times per week for minutes per
session; and a , -to- for (Ex. SD-1 at
16, 19-20).
In a Final Notice of Recommendation dated May 2, 2013 the DOE advised the
3
. 8 NYCRR § 200.1(zz) parent that the student’s recommended program would be implemented at the in (Ex. SD-2).
On May 7, 2013, the student participated in a psychological evaluation by , Ph.D. of the . The student was referred for the evaluation as part of applying for services through , as well as to assess his level of . According the results from the -
- , the student’s fell in the range of
, with respect to his ( ),
( and abilities ( ). His s were limited to . His fell in the range ( ) according to the , with deficits noted in his , , skills (Ex. P-U at 2-3).
In a letter to the CSE dated September 13, 2013, the parent stated that he did not believe that his son had made appropriate progress in the recommended public program.
The parent also stated that he intended to place his son in the at public expense (Exs. SD-10 at 4, P-C). On October 7, 2013, the parent signed an enrollment contract with the for the 2013/14 school year (Ex. P-D). The student began attending the shortly thereafter and this hearing ensued (Ex. P-A,
P-U at 2).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s 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. 6; Ex. IHO-XII).
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 DOE 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 (R. 7; Exs. IHO-XIII, P-A).
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. K atonah-Lew isboro 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. See E.M . v.
New Y ork City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); 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. Composition of May 2013 CSE
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 parent asserts that the May 2013 CSE was not duly constituted (R. 24; Exs.
IHO-XIII at 6, P-A at 5).
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 May 2013 CSE was duly constituted when it developed an IEP for the student for the 2013/14 school year.
Present at the May 2, 2013 meeting were: Ms. , the school district representative; Ms. , the student’s special education teacher at that time;
Ms. , a school psychologist; the student’s father (via telephone); and the student’s aunt (R. 17, 27, 34; Ex. SD-1 at 22).
Alternatively, while the parent objects to the absence of an additional parent member from the May 2, 2013 meeting (R. 24; Ex. IHO-XIII at 6), I find that an additional parent member was not a required attendee. Effective August 1, 2012, amendments to State law and regulations provide that an additional parent member is no longer a required member of a CSE unless specifically requested in writing by the parents, by the student, or by a member of the CSE at least 72 hours prior to the meeting.
See N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). There was no evidence entered into the hearing record to reflect that the parent, or anyone else, requested the presence of an additional parent member at the May 2, 2013 meeting (R.
18).
C. Adequacy of Evaluations
The parent alleges that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2013/14 school year (Exs. IHO-XIII at 7, P-A
at 4-5).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant , , and information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
I find that the CSE had adequate evaluative information of the student’s needs upon which to premise its program for the student for the 2013/14 school year (Ex. SD-1). See A pplication of a Student with a Disability , Appeal No. 12-017 (SRO February 22, 2012). At the time of the May 2, 2013 meeting, the student was a young ( ), , child (R. 75; Exs. SD-1 at 1-
2, P-A at 2). The CSE possessed the results of the , an April 22, 2013 classroom observation, a May 2, 2013 evaluation, and for , and a
(R. 18-19; Exs. SD-1 at 1, SD-3, SD-4, SD-5, SD-6, SD-7, SD-8, P-A at 5). There was no evidence entered into the hearing record that the student’s father or aunt objected to any of the CSE’s evaluations, or wanted additional or independent testing of the student’s needs in any domain.
D. Adequacy of IEP Goals
The parent alleges that the annual goals developed for the student were inadequate, insufficient and vague (Exs. IHO-XIII at 7, P-A at 3).
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
I find that the CSE’s IEP for the student for the 2013/14 school year established annual educational goals which were reasonably related to his educational deficits. The
May 2, 2013 IEP included annual goals in: , , , ,
, education, skills, skills,
, and / which were consistent with those
educational deficits identified in the IEP and described what he could reasonably be expected to accomplish within a month period. The IEP’s short term objectives also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Exs. SD-1 at 4-
15, P-B at 4-9). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); R.B. v. New Y ork City Dep’t of Educ., 62 IDELR 55, 113 LRP 39966 (S.D.N.Y. Sept. 27, 2013), aff’d, 64 IDELR 126, 114 LRP
47226 (2d Cir. Oct. 29, 2014).
E. Parent Counseling & Training
The parent alleges that the May 2, 2013 IEP improperly omitted parent counseling and training from the student’s program (Ex. P-A at 4).[5]
State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate. See 8 NYCRR § 200.4(d)(2)(v)(b)(5).
State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with to perform appropriate follow-up activities . See 8 NYCRR § 200.13 .
The hearing record is unequivocal that the provision of parent counseling and training was not memorialized on the May 2, 2013 IEP (Exs. SD-1, P-B). The evidence entered into the hearing record does not reflect, however, that the CSE’s failure to specify parent counseling and training on the student’s IEP impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); [8]
NYCRR § 200.5(j)(4)(ii); M.N. v. New Y ork City D ep't of Educ., Region 9 (Dist. 2), 700
F. Supp. 2d 356, 368 (S.D.N.Y. 2010); M.M . v. New Y ork City Dep’t of Educ., Region 9 (Dist. 2), 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008).
F. Meaningful Participation/Interpreter Services The parent asserts that he was denied meaningful participation in the CSE/IEP process because documents were not provided in his native language ( ) and that an interpreter was not provided at the May 2, 2013 meeting (Exs. IHO-XIII at 3-4, 6, P-A
at 3).
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the ide ntification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. §
300.322; 8 NYCRR § 200.5(d). The school district "must take whatever action is necessary to ensure that the parent understanding the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English." See 34 C.F.R. § 300.322(e); 8 NYCRR §
200.5(j)(3)(vi); see also A pplication of a Child with a Disability , Appeal No. 05-119.
The SESIS events log entered into the hearing record does not reflect any request by the parent, from March 13, 2012 through the May 2, 2013 meeting, for translated educational records or for an interpreter at school meetings. The parent, whose first language is , participated in the May 2, 2013 meeting very briefly via telephone and authorized a relative, Ms. , who was attending in person, to participate in the meeting on his behalf, and after providing such authorization, the parent terminated his telephone connection to the meeting (R. 23, 29-30, 190; Ex. P-A at 3). Ms.
participated at the May 2, 2013 meeting in English and did not request a interpreter (R. 23). The hearing record also reflects that Ms. prepared several authorizations and letters to the DOE in English at the parent’s direction (Ex. SD-
10).
Alternatively, while the April 22, 2013 classroom observation noted that the parent “ ” that statement alone did not trigger an obligation of the CSE to secure a translator for the parent or have the student’s educational records translated into (Exs. IHO-XIII at 4, SD-3). There is no evidence contained in the hearing record which supports counsel’s argument that the parent “was completely forced out of the whole process” and “had no alternative but to abdicate his role in his son’s educational decision to Ms. because he lacked proficiency in English” (Ex.
IHO-XIII at 6). There is also evidence in the hearing record to support the allegation that Ms. was pressured by the CSE to waive a translator (R. 23; Ex. P-A at
3).
G. 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 in the hearing record demonstrates that the student’s May 2, 2013 IEP was designed with information provided by the student’s teachers and providers, and offered personalized instruction with sufficient support services to permit the student to receive educational benefit. See A pplication of the New Y ork City Dep’t of Educ., Appeal No. 12-158 at 7 (SRO Sept. 26, 2014) (denying claim for tuition reimbursement to Cooke Center where FAPE offered to student). At the time of the May 2, 2013 meeting, the student’s overall , , prevented him from participating in the curriculum (Exs. SD-1 at 3, P-B at 3).
The student needed to improve in . skills such as , and , and needed to be developed on a more consistent basis. Based on those needs, the CSE determined that the student required a environment with programming, , and a program for the . The CSE therefore recommended that the student receive the majority of his instruction during the 2013/14 school year in a in a ( ) school on a month basis (R. 17;
Exs. SD-1 at 2, 15-16, P-B at 2, 10).6 In describing the student’s experience in a similar
The May 2013 CSE’s analysis of the student’s needs and program recommendation is consistent with that program the year before CSE noted that:
[The student] made a great amount of improvement since the beginning of the school year. Initially, [ the student] was
By the middle of the school year, [the student] was
[The student]
also started
He started to
He was able to He had also
started to
[The student] began to
(Exs. SD-1 at 1, P-B at 1).
During the first marking period of the 2013/14 school year prior to his removal, the student was making progress toward mastery of most of his special education IEP goals (R. 19-20, 76-77; Ex. SD-1 at 4-15).
The CSE also recommended sufficient support services for the student. To help the student improve and , the CSE recommended that he
/ , times per week for minutes per
session. While receiving / in a similar program during the 2012/13 school year, the student “ ” in ,
, and (Exs. SD-1 at 1-2, 13-
16, P-B at 2, 9-10).
At the May 2, 2013 meeting, it was reported that the student’s and skills were . To of the student’s , Ph.D., who recommended in May of 2014 that the student “ , , , special education setting with no more children and with teachers who are trained to work with children with and ” (Ex. P-U at 10). help the student improve his core muscle strength and his ability to negotiate a flight of stairs, the CSE recommended that the student receive , times per week for minutes per session. During the first marking period of the 2013/14 school year prior to his removal, the student was making progress toward mastery of both of his goals (Exs. -1 at 2, 4-
5, 16, P-B at 2, 10).
At the May 2, 2013 meeting, it was determined that the student continued to require services to assist him in developing , skills, and skills. The CSE therefore recommended that the student received , times per week for minutes per session. During the first marking period of the 2013/14 school year prior to his removal, the student was making progress toward mastery of both of his goals (Exs. SD-1 at 2, 11-13, 16, P-B at 3, 8-10).
Alternatively, while the parent asserts that the student did not receive all of the assistance at the public school to which he was entitled, that claim was not included in the due process complaint and is therefore beyond the scope of this hearing (R. 79, 87, 194-195; Exs. IHO-XIII at 2-3, P-A). See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii). Even if that claim had been pled in the complaint, I note that as the student was making progress in the public program both before and after a was added to his program, I would conclude that any interruption in the service was not so pervasive as to deny the student educational benefit (Ex. SD-1 at 1-15, P-B at 1-3).
H. Conclusion
I have considered the parent’s remaining arguments and have concluded that they are without merit. Having determined that the DOE offered the student a FAPE for the 2013/14 school year, it is not necessary to reach the issues of whether the student’s private placement at the was appropriate or whether relevant equitable considerations supported the parent’s tuition reimbursement/direct payment claim. See
M.C. v. V oluntown, 226 F.3d 60, 66 (2d Cir. 2000); W alczak, 142 F.3d at 134.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2013/14 school year is DENIED.
Dated: November 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 ON MAY 14, 2014
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 10/2/13, 9 pgs.
B. Individualized Education Program (IEP), 5/2/13, 16 pgs.
C. Letter to (CSE) from parent, 9/13/13, 2 pgs.
D. Tuition Agreement, 10/7/13, 2 pgs.
E. Proof-of-payment, 9/25/13, 1 pg.
F. U.S. Individual Tax Return (2012), 2/24/13, 2 pgs.
G. Affidavit of Tuition Payment, 9/25/13, 1 pg.
H. Program Description, undated, 2 pgs.
I. Class Schedule, 2013/14, 1 pg.
J. New Student 30 Day Review, 11/4/13, 2 pgs.
K. / Progress Report, 11/3/13, 1 pg.
L. Progress Report, 1/15/14, 2 pgs.
M. Progress Report, 2013/14, 13 pgs.
N. 2nd Quarter Report Card & Comments, 2013/14, 2 pgs.
O. , 12/6/13, 1 pg.
P. , 12/6/13, 2 pgs.
Q. Progress Report (Updated), 2013/14, 14 pgs.
R. 3rd Quarter Report Card & Comments, 2013/14, 2 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 5/2/13, 22 pgs.
2. Final Notice of Recommendation (FNR), 5/2/13, 1 pg.
3. Classroom Observation, 4/22/13, 1 pg.
4. Evaluation, 5/2/13, 2 pgs.
5. 4/22/13, 1 pg.
6. for service, 4/22/13, 1 pg.
7. for , 3/6/13, 1 pg.
8. for , 3/6/13, 1 pg.
9. Authorization for Release of Health Information, 5/3/13, 2 pgs.
10. Correspondence from parent, various, 4 pgs.
11. SESIS Events Log, various, 6 pgs.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 10, 2014
PARENT
S. , 4th Quarter Progress Report, 1 pg.
T. , 4th Quarter Report Card & Comments, 14 pgs.
U. Evaluation, 5/12/14, 14 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, 12/24/13, 1 pg.
II. Confirmation of Extension, 2/5/14, 1 pg.
III. Confirmation of Extension, 3/7/14, 1 pg.
IV. Confirmation of Extension, 3/24/14, 1 pg.
V. Confirmation of Extension, 4/24/14, 1 pg.
VI. Confirmation of Extension, 5/29/14, 1 pg.
VII. Confirmation of Extension, 6/27/14, 1 pg.
VIII. Confirmation of Extension, 7/30/14, 1 pg.
IX. Confirmation of Extension, 8/18/14, 1 pg.
X. Confirmation of Extension, 10/2/14, 1 pg.
XI. Confirmation of Extension, 11/3/14, 1 pg.
XII. DOE Closing Statement, 8/5/14, 4 pgs.
XIII. Parent’s Memorandum of Law, 8/5/14, 15 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, in order for the parties to submit their post-hearing briefs, and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process . Accordingly, requests for extensions of the case compliance date were granted (R. 59-61, 215-217; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO- V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI) . See 34 C.F.R. § 300.515(c); 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; (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.
[5] Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program .
[8] NYCRR § 200.1(kk).