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: September 28, 2012
November 13, 2012
November 28, 2012
December 14, 2012
March 22, 2013
Actual Record Closed Date: November 5, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2012
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
Assistant Principal (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2012
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
Special Education Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2012
ESQ., Attorney — Student
Parents
(via telephone) — Student
ESQ., Attorney — DOE
Principal (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2012
ESQ., Attorney — Student
Parents
Teacher (via telephone) — Student
Counselor (via telephone) — Student
Director (via telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2013
ESQ., Attorney — Student
Parents
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 attorneys for the student and the parents in a due process complaint notice dated June 6, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents, and/or directly pay for, costs associated with the student’s unilateral private placement at for the 2011/12 school year (Exs. SD1, 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
In a due process response dated June 15, 2012, the DOE denied each and every allegation contained in the parents’ due process complaint (Ex. P-B). See 8 NYCRR §§ 200.5(i)(4), (5). Hearings in this matter were held before Impartial Hearing Officer William J. Wall on: September 28, 2012; November 13, 2012; November 28, 2012; November 28, 2012; December 14, 2012; and March 22, 2013. The DOE appointed me to hear this matter on September 9, 2013 following IHO Wall’s recusal.[2] See 8 NYCRR § 200.5(j)(3)(i). Appended to this decision are: a statement of appeal rights; a list of the 1 References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 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 June 6, 2012 due process complaint, the student was six (6) years old and has developmental delays, including fine motor, speech/language, communication, and social deficits, along with substantial sensory issues and a limited attention span (R. 132, 236-241, 325-327, 331-334, 448, 494; Exs. SD-1 at 1, P-A at 1, PI, P-M, P-N, P-O). For the 2011/12 school year, the student attended the Cooke Center (Lower School) in Manhattan (Exs. P-M, P-N, P-O, P-Q, P-R, P-T, P-U, P-V). 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 not in dispute in this hearing (Exs. SD-1 at 2, SD-2 at 1, SD-3, P-A at 2). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
A from August 2008, when the the assessment. Strengths were noted and a relative weakness in terms of his quantitative concepts (Ex. SD-6 at 1, P-I at 2).
At this time, the student’s language “seemed ” so he was referred . The student subsequently and at home. The student also started attending (Ex. P-I at 1).
As part of a over three (3) days in May and June of 2010, the student was administered the Test was also administered. While the student had very weak fine motor skills, he was able to . The student also scored
The Vineland Adaptive Behavior Scales (“Vineland”) were completed by the
IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV, IHO-XV). See 34
C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). student’s mother. On the domain with a ) which the first percentile. His overall was within the . Dr. recommended that the student be placed in a small, structured and supportive self-contained learning special class (Ex. P-I at 3).
The DOE conducted its of the student in June of 2010. On the , the student obtained a , which was in His performance in percentile). In the verbal area, his performance on the assessment with compliance to the task demand. In that area, he performed within
On the ), the student’s pre-academic . Overall, his academic skills fell in the ). Strengths were noted in the , such as recognition of numbers, letters and words. In that area, the . on a picture, or state in both areas language skills (Ex. SD-6 at 3-4).
At a meeting held on April 16, 2011, the CSE convened to develop an IEP for the student for the 2011/12 school year. The CSE recommended that the student receive the majority of per session; and a one-to-one behavior management paraprofessional (Exs. SD-2 at 1-2, 12, 14, SD-4).
On June 8, 2011, the parents signed an enrollment contract with the Cooke Center for the 2011/12 school year (Exs. P-Q, P-R). In a letter to the CSE dated June 13, 2011, the parents advised the Ex. P-C).
In a Final Notice of Recommendation dated June 16, 2011 the DOE advised the parents that the student’s recommended program would be implemented at the in Manhattan (Ex. SD-3).
In a letter to the DOE dated August 6, 2011, the parents stated that after visiting the proposed program they had determined that it was inappropriate to meet their son’s educational needs and would continue his for the balance of the school year (Exs. P-E, P-F). The parents reiterated their concerns with the proposed program in correspondence to the DOE dated November 18, 2011 and November 21, 2011 (Exs. P-G, P-H). This hearing ensued.
this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement 2011/12 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. an for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 11).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement for the 2011/12 school year. The DOE failed to develop an appropriate educational program for 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 (Exs. IHO-I, SD-1, 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); 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 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
1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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 , 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. Adequacy of Evaluations
Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parents allege that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2011/12 school year (Exs. IHO-I, SD-1, P-A). An evaluation of a student with a C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely 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 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 or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2011/12 school year (Ex. SD-2). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). At the April 6, 2011 meeting, the CSE possessed a June 7, 2010 , a June 2010 psychoeducational evaluation, a December 20, 2010 classroom observation and a March 2011 narrative report from (Exs. SD-6, SD-7, SD-8, P-I). The student’s mother attended this meeting as did . Ms. , the student’s head classroom teacher, participated in the meeting’s discussion and gave input regarding the student’s then-current functioning (R. 69-70, 79, 151, 160, 243-246, 350-351, 483, 485).
C. Adequacy of IEP Goals
The parents allege that the annual goals developed for the student were (Exs. IHO-I, SD-1, P-A).
An IEP must include a written statement of measurable annual goals, including designed to meet the student’s needs that result from the student’s disability to enable the in the general education curriculum, and meet each of the student’s other educational needs that result from . 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 2011/12 school year established annual educational goals which were reasonably related to his educational deficits. Ms. the hearing that the goals included in the IEP were derived largely from the March 2011 report. The April 2011 IEP included annual goals in: (12) month period. The IEP’s short term objectives schedules to be each annual goal (R. 142, 149-150, 152-153, 157-158; Exs. SD-2 at 7-11, SD-8). 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 York 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).
D. Substantive Appropriateness of Proposed Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made a FAPE “by providing personalized instruction with sufficient support services to permit the .” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The evidence in the hearing record demonstrates that the student’s April 2011 IEP was designed with information provided by the student’s teachers and providers at the , and offered personalized instruction with sufficient support services to permit the student to receive educational benefit. See Application of the New York City Dep’t of Educ., Appeal No. 12-158 at 7 (SRO Sept. 26, 2014) (denying +1 (Ex. P-I at 3). Consistent , the CSE recommended that the student receive the majority of his instruction during class in a specialized (District 75) school (Ex. SD-2 at 1). In the April 2011 IEP, the multiple distractions.” , the CSE recommended program modifications of: small group instruction, directions sensory breaks as needed, redirection to task, auditory and visual cues, direct
The CSE also recommended sufficient support services for the student. To address the student’s difficulty , the CSE recommended that the student receive individual and (Ex. SD-2 at 3, 14). To help the the CSE recommended (Ex. SD-2 at 10, 14). To assist the student in improve his play skills, the CSE recommended small (Ex. SD-2 at 5, 14).
E. Appropriateness of Proposed Placement
The parents allege that was an inappropriate placement for the student (Exs. IHO-I, SD-1, P-A).
Challenges to an assigned public school site are generally relevant to whether the district properly implemented a student’s IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district’s offered program must be determined on basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 186-188 (2d Cir. 2012). The Second Circuit has explained that the parents’ “[s]peculation that the school district would not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E., 694 F.3d at 195; see F.L. v. New York City Dep’t of Educ., 2012 WL 4891748, at *14-*16 (S.D.N.Y. Oct. 16, 2012); Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at *15 (W.D.N.Y. Sept. 26, 2012) (finding the parents’ pre-implementation arguments that the district would fail to adhere to the IEP were speculative and misplaced), adopted, 2012 WL 5473485 (W.D.N.Y. Nov. 9, 2012).
While several district courts have, since R.E. was decided, continued to wrestle with the difficult issue regarding challenges to the implementation of an IEP made before the student begins attending the school and taking services under the IEP, see D.C. v. New York City Dep’t of Educ., 2013 WL 1234864, at *11-*16 (S.D.N.Y. Mar. 26, 2013) (holding that the district must establish that it can implement the student’s IEP at the assigned school at the time the parent is required to determine whether to accept the IEP or unilaterally place the student); B.R. v. New York City Dep’t of Educ., 910 F. Supp.2d 670, 677-678 (S.D.N.Y. 2012) (same); E.A.M. v. New York City Dep’t of Educ., 2012 WL 4571794, at *11 (S.D.N.Y. Sept. 29, 2012) (holding that parents may prospectively challenge the adequacy of a “placement classroom” when a child has not enrolled in the school because district are not permitted to assign a child to a public school that cannot satisfy the requirements of an IEP), the State Review Officer has found it necessary to depart from those cases, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-161 at 13 (SRO Nov. 20, 2013).
Since these prospective implementation cases were decided in the district courts, the Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, “[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child,” see P.K. v. New York City Dep’t of Educ., (Region 4), 2013 WL 2158587, at *4 (2d Cir. May 21, 2013), and, even more clearly that “‘[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,” not a retrospective assessment of how that plan would have been executed,” K.L. v. New York City Dep’t of Educ., 2013 WL 3814669, at *6 (2d Cir. July 24, 2013) (rejecting as improper the parents’ claims related to how the proposed IEP would have been implemented). Thus, the analysis of the adequacy of an IEP in accordance with R.E. is prospective in nature, but he analysis of the IEP’s implementation is retrospective. Therefore, if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP. See R.E., 694 F.3d at 186-188; see also Grim, 346 F.3d 381-382 (holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined to be appropriate, but the parents chose not to avail themselves of the public school program).
As explained more recently, “[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of the proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented.” A.M. v. New York City Dep’t of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013); see R.B. v. New York City Dep’t of Educ., 2013 WL 5438605, at *17 (S.D.N.Y. Sept. 27, 2013); E.F. v. New York City Dep’t of Educ., 2013 WL 4495676, at *26 (E.D.N.Y. Aug. 19, 2013); M.R. v. New York City Dep’t of Educ., 2013 WL 4834856, at *5 (S.D.N.Y. Aug. 14, 2013) (finding that the argument that the assigned school would not have been able to implement the IEP is “entirely speculative”); see also N.K. v. New York City Dep’t of Educ., 2013 WL 4436528, at *9 (S.D.N.Y. Aug. 13,
2013) (citing R.E. and rejecting challenges to placement in a specific classroom because “‘[t]he appropriate inquiry is into the nature of the program offered in the written plan.’”).
In this case, arguments that the DOE would have failed to implement the April 2011 IEP that the student would have been among an inappropriate peer group are speculative insofar as the parents did not accept the April 2011 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student (Exs. IHO-I, SD-1, SD-2, P-A, P-E, P-F, P-G, P-H, P-Q, P-R). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at PS94M@PS276M.
F. Conclusion
Having determined that the DOE offered the student a FAPE for the 2011/12 school year, it is not necessary to reach the issues of whether the student’s private placement at or whether relevant equitable considerations supported the parents’ tuition reimbursement/direct payment claim. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim and/or direct payment of the student’s tuition to for the 2011/12 school year is DENIED. Dated: November 19, 2014
, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/6/12, 7 pgs.
B. Due Process Response, 6/15/12, 3 pgs.
C. Letter (CSE) from parent, 6/13/11, 2 pgs.
D. Letter to from parent, 6/24/11, 3 pgs.
E. Letter from parent, 8/6/11, 3 pgs.
F. Letter to (CSE) from parent, 8/6/11, 4 pgs.
G. Letter to from parent, 11/18/11, 3 pgs.
H. Letter to (CSE) from parent, 11/21/11, 3 pgs.
I. Evaluation, 6/7/10, 4 pgs.
J. Individualized Education Program (IEP), 11/2/10, 19 pgs.
K. Program Description, undated, 2 pgs.
L. Program Description, undated, 4 pgs.
M. Progress Report 1st Review, 11/2011, 13 pgs.
N. Progress Report 2nd Review, 3/2012, 18 pgs.
O. Progress Report 3rd Review, 6/2012, 19 pgs.
P. Affidavit of 6/27/12, 1 pg.
Q. Contract, 6/8/11, 2 pgs.
R. Enrollment Contract, 6/8/11, 2 pgs.
S. Curriculum, undated, 1 pg.
T. Class Schedule, undated, 1 pg.
U. Summer 2011 Attendance Report, 9/14/12, 1 pg.
V. 2011/12 Attendance Report, 6/18/12, 1 pg.
W. New York City Continuum of Services, undated, 1 pg.
X. 2011: Curriculum Outline, 2011, 2 pgs.
Y. U.S. Tax Return (Form 1040), 12/14/12, 2 pgs.
DEPARTMENT OF EDUCATION
1. Due Process Complaint Notice/Impartial Hearing Request, 6/6/12, 7 pgs.
2. Individualized Education Program (IEP), 4/6/11, 15 pgs.
3. Final Notice of Recommendation (FNR), 6/16/11, 1 pg.
4. Meeting Notes, 4/6/11, 2 pgs.
5. Minutes of CSE Meeting, 11/2/10, 2 pgs.
6. Confidential Report, 6/2010, 4 pgs.
7. Classroom Observation, 12/20/10, 2 pgs.
8. Report, 3/2011, 21 pgs.
9. U.S. Tax Return (Form 1040), 12/14/12, 18 pgs.
IMPARTIAL HEARING OFFICER
I. Parents’ Memorandum of Law & Closing Argument, 5/6/13, 31 pgs.
II. Confirmation of Extension, 9/20/13, 1 pg.
III. Confirmation of Extension, 10/21/13, 1 pg.
IV. Confirmation of Extension, 11/20/13, 1 pg.
V. Confirmation of Extension, 12/17/13, 1 pg.
VI. Confirmation of Extension, 1/21/14, 1 pg.
VII. Confirmation of Extension, 2/19/14, 1 pg.
VIII. Confirmation of Extension, 3/22/14, 1 pg.
IX. Confirmation of Extension, 4/15/14, 1 pg.
X. Confirmation of Extension, 5/10/14, 1 pg.
XI. Confirmation of Extension, 6/12/14, 1 pg.
XII. Confirmation of Extension, 7/14/14, 1 pg.
XIII. Confirmation of Extension, 8/18/14, 1 pg.
XIV. Confirmation of Extension, 9/18/14, 1 pg.
XV. Confirmation of Extension, 10/20/14, 1 pg.
Footnotes
[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 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 reason for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-II, IHO-III, IHO-IV, IHO-V,
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or changes in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of
[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