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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 20, 2015
April 23, 2015
April 29, 2015
Actual Record Closed Date: September 9, 2015
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2015
ESQ., Attorney — Student
Parents
Impartial Hearing Representative — DOE
Impartial Hearing Representative — DOE
School (via telephone) — DOE
Principal, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2015
ESQ., Attorney — Student
Parents
Admin. (via telephone) — Student
Teacher (via telephone) — Student
Teacher (via telephone) — Student
(via telephone) — Student
Impartial Hearing Representative — DOE
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2015
ESQ., Attorney — Student
Parents
DR., (via telephone) — Student
Impartial Hearing Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parents in a due process complaint notice dated July 1, 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 (“ ”) in for the 2014/15 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 , 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) . 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 -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 s pected 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)- , 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
On July 7, 2014, the DOE appointed me to serve as the hearing officer in this matter. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated July 28, 2014, the DOE denied each and every allegation contained in the complaint (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5). A pre-hearing conference with the parties was held on November 18, 2014 to clarify the issues and set dates for the hearing (R. 3-8). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were held on: April 20, 2015; April 23, 2015; and April 29, 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 July 1, 2014 due process complaint, the student was years old and has been diagnosed with an (“ at 1, P-A at 2, has not been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities (Exs.
P-S, P-V, P-X). See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and is not in dispute, but the parents object to the student’s educational classification as a student with a
(Exs. SD-2 at 1, SD-3 at 1, SD-9, P-A at 2). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR §
200.1(zz)(11).[3]
Beginning in September 2012, the student attended the
Given the student’s difficulty ing in school and his and with peers, the parents secured a private (“ ”) to support the student in that setting, (Exs. P-E at 4-5, P-F).
The student was evaluated in November and December 2013 at the in . The student was administered the (“ ”), which is designed to assess
the
The student earned a
, with a ( ) and a
In order to assess the student’s level of social and adaptive functioning, the , (Exs. P-B at 2, P-C at 2-6).
A administered at the indicated that the student’s , It was reported, however, that the student did not
(Exs. P-B at 2, P-D).
An evaluation was also conducted by an evaluator from the who observed and tested the student in his home. The student’s mother and teacher complete a and , respectively. It was determined that he performed
(Exs. P-B at 2, P-H).
At a meeting held on January 23, 2014, the Committee on Preschool Education (the “CPSE”) convened for an initial referral and to develop an IEP for the student for the student through June 30, 2014. After determining that the student was eligible for , the CSE recommended that the student receive services, at his regular preschool. The CSE also recommended that the student receive of individual times
, and
Exs. P-B at 2, P-K at
1, P-U at 1, 5).
In a May 2014 progress report, the student’s
stated that the student had demonstrated progress toward goals related to and . Despite that progress, however, was recommended to continue to address
(Exs. SD-5 at 2,
P-I at 2). In another May 2014 process report, the student’s recommended a continuation of (Ex. SD-6 at 2).
In a May 16, 2014 progress report, the student’s stated that he benefitted
“
The student appeared
(Ex. P-K at 5).
As part of a psychoeducational evaluation over days in May 2014, the student was re-administered the . The student earned a , which placed him within the
. On the
The student’s pre-academic skills were evaluated primarily by means of the . In general, the student’s pre-academic skills hovered around the (Ex. P-B at 7, 13, 17-18).
At a meeting held on May 29, 2014, the CSE convened to determine the student’s eligibility for and develop an IEP for the student for the 2014/15 school year. The CSE assigned the student a disability classification of . The CSE recommended that the student receive the majority of his instruction in a general education setting supported by of:
;
Ex. SD-3 at 6-7). In a final notice of recommendation (“FNR”)
dated June 13, 2014, the DOE advised the parents that the student’s recommended program would be implemented at in (Ex. SD-9).
In a letter dated June 26, 2014, the parents advised the CSE that they were rejecting its proposed program for the student and would unilaterally place the student at for the 2014/15 school year at public expense (Ex. P-N). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at during the 2014/15 school year should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment. did not provide the student with an appropriate program and it was overly restrictive. The relevant equities also mitigate against a reimbursement, and/or a direct payment, award (R. 39-41; Ex. SD-2).
B. The Parent
The CSE should have classified the student as having an other health , rather than a . The parents are entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at during the 2014/15 school year. The DOE denied the student a free appropriate public education. 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 parents also seek reimbursement for transportation costs. The parents withdrew their claim for reimbursement for a November 2013 (R. 42-46; 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 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. 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 m t 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)
ca ed 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); 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 m t 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 m t 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 m t 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 m t 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 m t 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); 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 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 2014 CSE
Turning to the first prong of the B urlington/Carter test, I m t determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at
192.
The parents allege that the May 2014 CSE was not duly constituted (Ex. P-A at 3). An
IEP m t 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 m t 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 ; 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 May 2014 CSE was duly constituted. Present at this initial eligibility (a/k/a “ ”) meeting was Ms. , a special education teacher; Ms. , a general education teacher; Ms.
, a school who also served as the school district representative; Ms.
, a school social worker; both parents; and Ms. , a parent advocate (Ex. SD-3 at 13).
Alternatively, while the parents assert that “there was no representative for the student’s current placement to disc s or comment on the student’s present level of performance (R. 44),” 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 2014/15 school year. Prior to the May 2014 meeting, Ms. conducted a classroom observation of the student and interviewed the student’s preschool teacher and (R. 62-66; Ex. SD-8). The hearing record also reflects that at the time of the May 2014 meeting, the CSE possessed the following evaluations and records: a November 20, 2013 social history; a November 21, 2013
; a December 2, 2013 initial evaluation; a
December 5, 2013 ; a May 2014 ( )
progress report; a May 2014 ( ) student progress report; a May 2014 psychoeducational evaluation; a May 4, 2014 ; a May 16, 2014
Progress Report; and a May 22, 2014 classroom observation (Exs. SD-3 at 1-4, SD-
4, SD-5, SD-6, SD-8, P-B, P-C, P-D, P-E. P-H, P-I, P-K ).5
C. Eligibility Classification
The parents assert that the May 2014 CSE should have determined that the student met the eligibility criteria for special education services as a student with an
(Ex. P-A at 2).[6]
The CSE’s decision to classify the student as a student with a
5
Additionally, I note that as the CSE did not recommend placement of the student at (Exs. SD-3 at 10, SD-9), it was not required by State or federal regulations to have a representative at the May 2014 meeting. Cf. A pplication of the Bd. of Educ. of the Carm el Cent. Sch. Dist., Appeal No. 05-031 (SRO May 6, 2005).
is not supported by the hearing record. The student has received a diagnosis of which is consistent with the classification (Exs. SD-3 at 1, P-A at 2, P-B at 15-16). See 8 NYCRR §
200.1(zz)(10); A pplication of a Student with a Disability , Appeal No. 14-161 at 9 (SRO Nov. 14, 2014).
According to a May 2014 ( ) progress report, the student “presents with a . He has made great progress towards his goals.” Additionally, the noted that the student’s “ skills have improved” (Ex. SD-6 at 1).
In contrast, the student’s stated in a May 2014 progress report that:
[The student] presents with
. This results in an .
[The student]
[The student] also demonstrates
(Ex. P-I at 1).
Considering the diagnosis and the student’s deficits, which were more pronounced than his “ ,” the May 2014 CSE should have classified the student as a student with an (Exs. SD3 at 1-3, SD-6, P-I).
Notwithstanding this finding, I note that the IDEA provides that a student's special education programming, services and placement m t be based upon a student's unique special education needs and not upon the student's disability classification. See 20 U.S.C.
§ 1412(a)(3) ("Nothing in this chapter requires that children be classified by their disability so long as each child . . . is regarded as a child with a disability under this subchapter"); 34 C.F.R. § 300.111; M.R. v. South Orangetow n Central Sch. Dist., 2011 WL 6307563, at *9 (S.D.N.Y. Dec. 16, 2011) (finding that once a student's eligibility is established, "it is not the classification per se that drives IDEA decision making; rather, it is whether the placement and services provide the child with a FAPE"). Th , even though the classification given to the student by the May 2014 CSE was not the most appropriate, it did not compromise the student’s right to an appropriate education, significantly impede the parents’ opportunity to participate in the development of the IEP, or ca e a deprivation of educational benefits. See A pplication of a Student with a Disability , Appeal No. 14-161 at 9 (SRO Nov. 14, 2014).
D. Substantive Appropriateness of Public Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision m t 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 m t 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 vague, immeasurable, and inappropriate (Ex. P-A at 3-4). An IEP m t 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 ed 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 2014/15 school year established annual educational goals which were reasonably related to his educational deficits. The student’s IEP for the 2014/15 school year included annual goals in ,
, , , , ,
, and which were consistent with those
educational deficits identified in the student’s evaluations and described what he could reasonably be expected to accomplish within a period. The 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 (R. 73; Ex. SD-3 at 4-6).
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).
2. General Education &
The parents assert that a general education program was not appropriate for the student because it did not offer him enough opportunity for individualized instruction or attention (Ex. P-A at 4).
The hearing record reflects that during the 2013/14 school year, the student participated in a general education preschool with support (Exs. P-E at 4-5, P-F, P-
U). The May 2014 CSE recommended for the 2014/15 school year that the student receive the majority of his instruction in a general education setting supported by of and
(R. 74; Ex. SD-3 at 6-7). The May 2014 CSE also recommended the following program modifications for the student: to increase ; to ensure that the student was on task;
(R. 72; Exs. SD-3
at 3, SD-8 at 2). In weighing a variety of program options for the student, including
(“ ”), (“ ”)
services, and a in a school, the CSE noted that the student is
(R.
76; Ex. SD-3 at 11).
As the crux of the dispute is whether or not the CSE erred in recommending that the student be educated in a general education setting, rather than a in a specialized school, I must analyze whether or not that recommendation constituted an appropriate placement in the LRE for the student.
The IDEA requires that a student’s recommended program must be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; W alczak, 142 F.3d at 132. In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general education environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. See 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR § 200.6(a)(1); Newington, 546 F.3d at 112, 120-121; Oberti v.
B oard of Educ., 995 F.2d 1204, 1215 (3d Cir. 1993); J.S. v. N orth Colonie Cent. Sch.
Dist., 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); W atson v. Kingston City Sch. Dist., 325 F.
Supp. 2d 141, 144 (N.D.N.Y. 2004); Mavis v. Sobel, 839 F. Supp. 968, 982 (N.D.N.Y.
1993).
The placement of an individual student in the LRE shall: “(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other student who do not have disabilities; and (3) be as close as possible to the student’s home.” 8 NYCRR §
200.1(cc); see also 34 C.F.R. § 300.116; 8 NYCRR § 200.4(d)(4)(ii)(b). Consideration is also given to any potential harmful effect on students or on the quality of services that they need. See 34 C.F.R. § 300.116(d); 8 NYCRR § 200.4(d)(4)(ii)(c).
Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and . See 34 C.F.R. § 300.115; 8 NYCRR §200.6. The continuum of alternative placements includes instruction in: regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as ) to be provided in conjunction with regular class placement. See 34 C.F.R. § 300.115(b).
To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1)
whether education in the general classroom, with the use of supplementary aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See Newington, 546 F.3d at 119-120; see also Oberti, 995 F.2d 1217-1218. A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to: “(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.” Newington, 546 F.3d at 120; see
Oberti, 995 F.2d at 1217-1218. The Court recognized the tension that occurs at times between the objective of having a district provide an education suited to a student’s particular needs and the objective of educating that student with non-disabled peers as much as circumstances allow. See Newington, 546 F.3d at 119. The Court explained that the inquiry is individualized and fact specific, taking into account the nature of the student’s condition and the school’s particular effects to accommodate it. See id. at 120.
If, after examining the factors under the first prong, it is determined that the school district was justified in removing the student from the general education classroom and placing the student in a , the second prong requires consideration of whether the school district has included the student in school programs with nondisabled students to the maximum extent appropriate. See Newington, 546 F.3d at 120.
Based on the credible opinions of the educational professionals who worked directly with the student, I find that the student would benefit from instruction in a general education setting and that CSE recommended sufficient support services to permit him to benefit educationally from that instruction (R. 75; Ex. SD-3). The May 2014 CSE possessed several evaluations and progress reports which commented on an appropriate educational program for the student. In a May 4, 2014 report, Dr.
stated that the student “will require a smaller class in with the ability to get frequent individualized instruction” (Ex. SD-4 at 2). Likewise, Ms. , the student’s preschool , recommended that the student “be part of an that will allow him to be challenged academically while also providing him with the that he needs to be successful and get his needs met” (Ex. P-K at 5).
In contrast, at the conclusion of her May 2014 psychoeducational evaluation, Dr.
stated:
Because of his and his
, [the student] will need placement in a very specialized school environment. He cannot learn in a general education classroom, even in a class with collaborative teaching. . . . In order to learn basic academic skills, [the student] requires a
(Ex. P-B at
16).
After due consideration of these conflicting opinions, I give greater weight to Ms.
recommendation of an program, than Dr. ’s
recommendation of a small class in a specialized school. Ms. provided direct instruction on a daily basis to the student from February through June of 2014 (Exs. P-K at 1, P-U at 5). Dr. ’s recommendation of a in a specialized school for students with was premised, in part, on her finding the student possessed a “ ” (Ex. P-B at 16). That finding, however, was inconsistent with the opinion of the student’s , who stated that he only possessed “a
” (Ex. SD-6 at 1), which again I resolve by giving greater weight to the opinion of the student’s service provider than that of a separately hired expert. 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. Challenge to Assigned School Placement
The parents assert that the CSE failed to recommend an appropriate placement for the student which could not implement the proposed IEP (Ex. P-A at 4-5).
Challenges to an assigned public school site are generally relevant to whether the school district properly implemented a student's IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the school district's offered program must be determined on the basis of the IEP itself. See
R.E., 694 F.3d at 186-88. The Second Circuit has explained that the parents'
"[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." See R.E., 694 F.3d at 195; see also F.L. v.
New Y ork City D ep't of Educ., 553 Fed. App'x 2, 9 (2d Cir. Jan. 8, 2014); K.L. v. New
Y ork City D ep't of Educ., 530 Fed. App'x 81, 87 (2d Cir. July 24, 2013).
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," P.K. v. New Y ork City D ep't of Educ., 526 Fed. App'x 135, 141,2013 WL 2158587 (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., 530 Fed. App'x at 87, quoting R.E., 694 F.3d at 187; see also C.F. v.
New Y ork City D ep't of Educ., 746 F.3d 68, 79 (2d Cir. 2014).
More recently, however, the Second Circuit has further clarified that while it is speculative to conclude that a school with the capacity to implement a given student's IEP will simply fail to adhere to that plan's mandates, see R.E., 694 F.3d at 195, it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP, see M .O. v. New Y ork City Dep’t of Educ., No. 14-1473,
2015 WL 4256024, at *7 (2d Cir. July 15, 2015).[7] School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP's requirements,” T.Y . v.
N.Y .C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir.2009), and R.E. does not foreclose all prospective challenges to a proposed placement school's capacity to implement a child's IEP, see M.O., 2015 WL 4256024, at *7. To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school's capacity to implement their child's IEP, which is “antithetical to the IDEA'[s]
reimbursement process.” See V .S. ex rel. D.S. v. N.Y .C. Dep't of Educ., 25 F. Supp. 3d
295, 300 (E.D.N.Y.2014).
The evidence contained in the hearing record demonstrates that the DOE issued a timely FNR to the parents on June 13, 2014 indicating that the student’s recommended program would be implemented at (Exs. SD-3, SD-9). In a letter dated June 26, 2014, the parent acknowledged receiving the DOE’s June 13, 2014 FNR (Exs. SD-9, P-
N).
Turning to the parents' allegations that the proposed placement could not implement the , that the proposed classroom would not be functionally grouped appropriately for the child, and that the proposed class size was too large (Ex. P-
A at 5), I note that these issues are speculative insofar as the parents did not accept the recommendations of the CSE or the program offered by the DOE and, furthermore, I note that the hearing record, in its entirety, does not support the conclusion that, had the student attended , the school would have deviated from substantial or significant provisions of the student's IEP in a material way thereby precluding the student from the opportunity to receive educational benefits. See Rowley, 458 U.S.
at 206-07; A .P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. Mar. 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005).
Alternatively, while the parents allege that the principal of denied them the opportunity to timely view the proposed placement (Ex. P-N at 2), neither the IDEA nor State regulations confer upon parents the right to visit a recommended school and classroom. See A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-026 at 11 (SRO Apr. 10, 2012).[8]
Having determined that the DOE offered the student a FAPE for the 2014/15 school year, it is not necessary to reach the issues of whether the student’s private placement at was appropriate or whether equitable considerations support the parent's tuition reimbursement claim. See M.C. v. V oluntown, 226 F.3d 60, 66 (2d Cir.
2000); W alczak, 142 F.3d at 134.
F. Transportation
The parents seek reimbursement of transportation costs incurred during the 2014/15 school year (Ex. P-A at 7). Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. § 300.139(b)(1)(ii); Letter to Luger &
W einberg, 58 IDELR 199 (OSEP Dec. 6, 2011).
The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law § 4402(4)(d);
A pplication of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994).
The hearing record reflects that the May 2014 CSE did not recommend the student for specialized transportation (R. 77; Ex. SD-3 at 11). The student enrolled at on or about June 27, 2014 (Ex. P-S at 4). In a letter dated September 4, 2014, the parents (through their advocate) requested transportation for the student to and from the (Ex. P-T). There is no evidence contained in the hearing record of any response by the DOE. Given that the distance between the student’s home and is within the State limit, I find that the DOE was responsible to provide the student with suitable transportation and shall be directed to reimbursement the parents for their actual transportation costs upon submission of adequate proof-of-payment.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim that the CSE erred in classifying the student as one with a is SUSTAINED; and within thirty (30) days of the date of this Order, the CSE shall schedule a meeting to consider the student’s eligibility for special education and as a student with an
;
The parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to for the 2014/15 school year is DENIED; and
The parents’ claim for reimbursement of actual transportation costs during the 2014/15 school year is SUSTAINED; and within thirty (30) days of its receipt of adequate proof-of-payment, the DOE shall reimburse the parents for all costs associated with the student’s transportation to and from during the 2014/15 school year.
Dated: September 21, 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, 7/1/14, 8 pgs.
B. Psychoeducational Evaluation, 5/20/14, 18 pgs.
C. , 11/21/13, 8 pgs.
D. , 12/5/13, 5 pgs.
E. Social History, 11/20/13, 5 pgs.
F. Parent Survey, 5/12/14, 7 pgs.
G. Prescription, 1/22/14, 1 pg.
H. Initial Evaluation, 12/2/13, 6 pgs.
I. ( ) Student Progress Report, 5/2014, 4 pgs.
J. Letter to (Instructional Support Committee) from parent, 5/15/14, 3
pgs.
K. Progress Report, 5/16/14, 5 pgs.
L. [Reserved]
M. [Reserved]
N. Letter to CSE from parents, 6/26/14, 8 pgs.
O. ( Tuition), 7/30/14, 1 pg.
P. ( Tuition), 6/24/14, 1 pg.
Q. ( Tuition), 6/24/14, 1 pg.
R. [Reserved]
S. Tuition Affidavit, Contract & Student Schedule, 6/24/14, 7 pgs.
T. Letter Requesting Transportation, 9/4/14, 1 pg.
U. Individualized Education Program (IEP), 1/23/14, 14 pgs.
V. , Progress Report, 4/2015, 2 pgs.
W. [Reserved]
X. , Progress Report, 4/2015, 2 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Due Process Response, 7/28/14, 3 pgs.
3. Individualized Education Program (“IEP”), 5/29/14, 13 pgs.
4. , 5/4/14, 2 pgs.
5. ( ) Student Progress Report, 5/2014, 2 pgs.
6. ( ) Student Progress Report, 5/2014, 2 pgs.
7. [Reserved]
8. Classroom Observation, 5/22/14, 2 pgs.
9. Final Notice of Recommendation (FNR), 6/13/14, 1 pg.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 9/12/14, 1 pg.
II. Confirmation of Extension, 10/6/14, 1 pg.
III. Confirmation of Extension, 11/13/14, 1 pg.
IV. Confirmation of Extension, 12/12/14, 1 pg.
V. Confirmation of Extension, 1/12/15, 1 pg.
VI. Confirmation of Extension, 2/11/15, 1 pg.
VII. Confirmation of Extension, 3/13/15, 1 pg.
VIII. Confirmation of Extension, 4/9/15, 1 pg.
IX. Confirmation of Extension, 5/13/15, 1 pg.
X. Confirmation of Extension, 6/12/15, 1 pg.
XI. Confirmation of Extension, 7/10/15, 1 pg.
XII. Confirmation of Extension, 8/11/15, 1 pg.
XIII. Confirmation of Extension, 9/8/15, 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 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 (Exs. IHO-I - IHO-XIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] , such as , a affects a student’s 8 NYCRR
[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.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the e 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
[6] Other health- means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10); see also 34 C.F.R. §§ 300.8(a)(1), (c)(9).
[7] For example, it is not speculative to conclude that an IEP recommending a seafood-free environment, for a child with a life threatening seafood allergy, could not be implemented at a proposed school that was not seafood free. See D.C. ex rel. E.B. v. New Y ork City D ep't of Educ., 950 F.Supp.2d 494, 513 (S.D.N.Y.2013). Nor is it speculative to conclude that an IEP recommending one-on-one outside of the classroom, could not be implemented at a school that provided only in-class in a group setting. See B.R . ex rel. K.O. v. New Y ork City Dep’t of Educ., 910 F. Supp. 2d 670, 676–79 (S.D.N.Y. 2012).
[8] The U .S. Department Education’s Office of Special Education (OSEP) has opined that the IDEA does not provide a general entitlement to parent of student with disabilities to observe their children in any current classroom or educational placement. See Letter to M am as, 42 IDELR 10 (OSEP 2004). OSEP is the agency with the principal responsibility for administering the IDEA . See 20 U.S.C. § 1402(a). Substantial m t be given to a federal agency’s interpretation of its own regulations; the interpretation m t be controlling weight unless it is plainly erroneo or inconsistent with the regulation .” See Jefferson Univ. v . S halala, 512 U.S. 504, 512 (1994); see also Honig, 484 U.S. at 325 n.8.