NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 24, 2014
March 9, 2015
Actual Record Closed Date: July 20, 2015
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 24,
2014
ESQ., Attorney — Student
Parents
District Representative, CSE — DOE
DR., Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2015
ESQ., Attorney — Student
Parents
Principal, (via telephone) — Student
District Representative, CSE — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint notice dated June 4, 2014. 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 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 June 9, 2014. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on November 24, 2014 and March 9, 2015.[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 June 4, 2014 due process complaint, the student was years old and diagnosed with (“ ”). The student presents with difficulties in , , , , and (R. 38; Exs. SD-5 at 1-2, P-A). For the 2013/14 school year, the student attended the in (Exs. SD-11, P-A, P-D, P-E, P-F, P-G, P-H). 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 an is not in dispute in this hearing (R. 38; Exs. SD-5 at 1, P-A). See 34 C.F.R. §
300.8(c)(1);[8] NYCRR § 200.1(zz)(1).3
The student attended a for three (3) years and then was recommended for (“ ”) services in a class, with related services of , , and .4
In the setting, the student began presenting with difficulties, e.g., , . For the 2012/13 school year, the parent unilaterally placed the student at the (the “ ”), where he was placed in a , classroom (Exs. SD-2 at 1-2, SD-3 at 2).
On April 4, 2013, the student participated in a psycho-educational evaluation to determine his then-current levels of . The student’s and general ability to learn were assessed with the (“ ”). The is an individually administered standardized test consisting of indices that measure considered to be related to . The student obtained a score of ( percentile), which placed him the range for abilities. Scores across domains ranged from
: ( percentile);
( percentile); ( percentile); and (
percentile). Difficulty was seen in the student’s ability to and , a skill necessary in order to
3
8 NYCRR § 200.6(g) . day (Ex. SD-2 at 2-4).
The student’s levels of were assessed with the (“ ”). , the student’s was . The student recognized
, albeit awkwardly, and .
The student’s appeared and
, ,
; . The student’s
skills were a relative strength, at a equivalence; skills were . The student
could ,
. He enjoyed and while he could , . The student’s skills were delayed; , and difficulties were evident. The student’s ability to and was and he required and (Ex. SD-2 at 5-6, 8).
During the evaluation, the parent reported that it was difficult for the student to and ,
. ,
. The student was reportedly responsive to where he was able to . The student also responded well to
,
(Ex. SD-2 at 8).
At a meeting held on April 11, 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; , time per week for
minutes per session; , time per week for minutes per session; , times per week for minutes per session; , times per week for minutes per session; / , time per week for minutes per session; and / , time per week for minutes per session (Exs. SD-5 at 7-10, SD-8).
In a final notice of recommendation (“FNR”) dated June 17, 2013, the DOE advised the parent that the student’s recommended program would be implemented at in (Ex. SD-10).
In a letter dated August 23, 2013, counsel for the student advised the CSE that the parent was rejecting its proposed program and would unilaterally place the student at the for the 2013/14 school year at public expense (Ex. P-B). In a letter dated September 11, 2013, counsel for the student sent a corrected notice to the CSE advising it that the student would be unilaterally placed at the for the 2013/14 school year, rather than the (Ex. SD-11). This hearing ensued.
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 proposed 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. 13-15).
B. The Parent
The parent is entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at the during the 2013/14 school year. The DOE denied 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 (Ex. 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).[5]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" W alczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v.
Carm el 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); v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."
W alczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patsk in v. B oard of Educ., 583 F. Supp. 2d
422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.
See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where B urlington/Carter factors are satisfied. M r. A . v.
New Y ork City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W . v.
New Y ork City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v.
Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriaeness 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. Adequacy of Evaluations
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 alleges that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2013/14 school year (Ex. P-A at 2).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic 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 functional, developmental and academic needs upon which to premise its program for the student for the 2013/14 school year (R. 30; Exs. SD-2, SD-3, SD-5, SD-8). See
A pplication of a Student with a Disability , Appeal No. 12-017 (SRO February 22, 2012).
At the April 11, 2013 meeting, the CSE possessed an April 4, 2013 psychoeducational evaluation and an April 4, 2013 social history update (Exs. SD-2, SD-3, SD-5, SD-8).
The student’s mother attended the April 11, 2013 CSE meeting as did Dr. , a private psychologist, Ms. , Program Director of the , and Mrs.
, the student’s classroom teacher at the . Dr. , Ms. , Mrs.
, and the student’s mother participated in the meeting’s discussion and gave input regarding the student’s then-current functioning (R. 26; Exs. SD-5, SD-8). The hearing record does not reflect that the parent requested any additional, or independent, evaluations of the student at the April 11, 2013 meeting (Exs. SD-5, SD-8).
C. Composition of April 2013 CSE
The parent alleges that the April 2013 CSE was not duly constituted (Ex. P-B at 3-
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 hearing record reflects that the April 2013 CSE meeting was duly constituted.
Participants at the April 2013 CSE included: Ms. , a special education teacher; the parent, Dr. , a school psychologist and the district representative;
Mrs. , the student’s classroom teacher at the , Dr. , a private psychologist; and Mrs. , the Program Director of the (Ex. SD-5 at 12). There is no evidence contained in the hearing record of the parent having requested that other individuals participate in the April 2013 CSE meeting.
Alternatively, I find that the absence of a regular education teacher from the April 2013 CSE meeting was permissible because the hearing record does not show that the CSE considered placing the student in a regular education classroom for the 2013/14 school year (Exs. SD-5 at 11). See 8 NYCRR § 200.3(a)(1)(ii). 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 NYC RR § 200.3(a)(1)(viii). As there is no evidence contained in the hearing record of such a request being made, I find that the absence of an additional parent member from the April 2013 CSE meeting was permissible (Ex. SD-5 at 12).
D. 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.
1. Goals & Objectives
The parent alleges that the annual goals developed for the student were impermissibly vague (Ex. P-1 at 2-3). 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
April 11, 2013 IEP included annual goals in: , ,
, , ,
, , and which were consistent with
those educational deficits identified in the IEP and described what he could reasonably be expected to accomplish within a ten (10) month period. The IEP’s annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Ex. SD-5 at 3-6). 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); M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 (S.D.N.Y. Sept. 29, 2008); W .S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 146-147 (S.D.N.Y. 2006).
2. Program
The parent alleges that the recommended would have been to appropriately support the student’s needs and would not have provided him with adequate (Ex. P-A at 2).
From the evidence entered into the hearing record, including the testimony of Dr.
, I conclude that the recommended was appropriate for the student and offered him a FAPE (R. 39; Exs. SD-5 at 7, SD-8). Dr. conducted a thorough psychoeducational evaluation of the student on April 4, 2013 (Ex. SD-2). From her evaluation, Dr. noted that the student’s skills had measured in the range (R. 38; Exs. SD-2 at 2-4, SD-5 at 1). Dr. credibly testified at the hearing that the recommended program would have addressed the student’s needs and supported his areas of strength (R.
38). Accordingly to Dr. , the CSE considered the student’s past difficulty with programming and recommended a so that he could receive the , he required in order to learn (R. 38-39; Ex. SD-5 at
11).
Alternatively, while Ms. , the Principal of the , stated that the which she has observed in the past lacked a
(R. 119-120), the student’s IEP here provided for sufficient program modifications to meet his classroom management needs (Exs. SD-5 at 2, SD-6, SD-7).
While Ms. also opined that the student required instruction in a setting of children or less in a school (R. 88, 103, 19-120), I give greater weight on this point to the opinion of Dr. because she had thoroughly evaluated the student a week before the April 2013 CSE meeting (R. 38-39; Exs. SD-2, SD-5). See W atson v.
Kingston City Sch. Dist., 325 F. Supp. 2d 141 (N.D.N.Y. 2004) (“the mere fact that a separately hired expert has recommended different programming does nothing to change [the] . . . deference” paid to the school district and its trained educators), aff’d, 142 Fed.
Appx. 9 (2d Cir. 2005), cert. denied, 546 U.S. 1091 (2006); Pascoe v. W ashingtionville
Cent. Sch. Dist., No. 96 Civ. 4926, 1998 WL 684583 (S.D.N.Y. Sept. 29, 1998) (holding that recommendation that a student be given private instruction did not, in itself, invalidate substantive recommendations in IEP).
E. Appropriateness of Proposed Placement
The parent alleges that would have been an inappropriate placement for the student given its and would have been for the student given his needs (Ex. P-A at 3).
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 Y ork 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 Y ork 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
Y ork 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 Y ork City Dep’t of Educ., 910 F. Supp.2d
670, 677-678 (S.D.N.Y. 2012) (same); E.A .M . v. New Y ork 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 A pplication 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 Y ork 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 Y ork 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 Y ork City Dep’t of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013); see R.B. v. New Y ork City Dep’t of Educ., 2013 WL 5438605, at *17 (S.D.N.Y. Sept. 27, 2013); E.F. v. New Y ork City Dep’t of Educ., 2013 WL 4495676, at *26 (E.D.N.Y. Aug. 19, 2013); M .R. v. New Y ork 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 Y ork 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, the argument that the DOE would have failed to implement the April 11, 2013 IEP at the is speculative insofar as the parent did not accept the April 11, 2013 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in the , a private school of her choosing (Exs. SD-11, P-A, P-C, P-D, P-E). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at
.
F. 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:July 28, 2015
JEFFREY SCHIRO, 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, 6/4/14, 5 pgs.
B. Notice of Unilateral Placement/Request for Transportation, 8/23/13, 5 pgs.
C. Letter to from parent, 9/24/13, 2 pgs.
D. Program Description, 2013/14, 1 pg.
E. Letter of Agreement, 8/29/13, 2 pgs.
F. Student Schedule, 2013/14, 1 pg.
G. Goals and Progress Report, 2013/14, 13 pgs.
H. End of Year Report, 6/2014, 3 pgs.
DEPARTMENT OF EDUCATION
1. Consent for Evaluation, 4/4/13, 1 pg.
2. Psycho-educational Comprehensive Testing, 4/4/13, 11 pgs.
3. Social History Update, 4/4/13, 3 pgs.
4. Notice of IEP Meeting, 4/8/13, 3 pgs.
5. Individualized Education Program (IEP), 4/11/13, 12 pgs.
6. ( ), 4/11/13, 2 pgs.
7. ( ), 4/11/13, 1 pg.
8. Minutes of CSE Meeting, 4/11/13, 2 pgs.
9. Final Notice of Deferred Placement, 4/30/13, 1 pg.
10. Final Notice of Recommendation (FNR), 6/17/13, 1 pg.
11. Corrected Notice of Unilateral Placement/Request for Transportation, 9/11/13, 3
pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 8/18/14, 1 pg.
II. Confirmation of Extension, 9/15/14, 1 pg.
III. Confirmation of Extension, 10/17/14, 1 pg.
IV. Confirmation of Extension, 11/17/14, 1 pg.
V. Confirmation of Extension, 12/16/14, 1 pg.
VI. Confirmation of Extension, 1/12/15, 1 pg.
VII. Confirmation of Extension, 2/17/15, 1 pg.
VIII. Confirmation of Extension, 3/18/15, 1 pg.
IX. Confirmation of Extension, 4/17/15, 1 pg.
X. Confirmation of Extension, 5/17/15, 1 pg.
XI. Confirmation of Extension, 6/17/15, 1 pg.
XII. Confirmation of Extension, 7/17/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s 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. 71-72; Exs. IHO-I - IHO- XII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[8] NYCRR § 200.1(zz) .
[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.