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: October 16, 2013
February 11, 2014
March 19, 2014
June 10, 2014
June 27, 2014
Actual Record Closed Date: June 18, 2015
: Jeffrey J. Schiro, Esq.
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NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2013
ESQ., Attorney (via telephone) — Student
ESQ., Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2014
ESQ., Attorney — Student
Parents
Teacher, (via telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2014
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE , 2014
ESQ., Attorney — Student
Parents
Teacher, (via telephone) — Student
Counselor, (via telephone) — Student
(via telephone) — Student
(via telephone) — Student
’s — DOE
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2014
ESQ., Attorney — Student
Parents
DARLENE, Ph.D., (via telephone) — Student
ESQ., Attorney — DOE
School (via telephone) — DOE
’s — 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 originally requested by the attorneys for the student and the parent in a due process complaint notice dated July 12, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent, and/or directly pay for, costs associated with the student’s unilateral private placement at the for the 2013/14 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial
(“ ”) 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 ’s 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 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 July 15, 2013. See 8 NYCRR § 200.5(j)(3)(i). On October 8, 2013, the parent filed an amended due process complaint (Ex. P-B). See 8 NYCRR § 200.5(i)(7). At a hearing held on October 16, 2013, the parent moved for an interim order on pendency (R. 5-12; Exs. -I at 3, P-B at 2). The
DOE did not oppose the parent’s motion (R. 11; Ex. -I at 3). On October 30, 2013, I rendered an Interim Order on Pendency which directed the DOE to provide the student with (“ ”) and related services at public expense pending the completion of this proceeding (Ex. -I at 7). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). Hearings in this matter were thereafter held on: February 11, 2014; March 19, 2014; June 10, 2014; and June 27, 2014.[2] Appended to this decision are: a statement of ’s 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) (v).
III. FACTUAL BACKGROUND
At the time of the October 8, 2013 amended due process complaint, the student was years old and diagnosed with an (“ ”) (Exs.
-I at 5, SD-2 at 1, P-A at 1, P-B at 1, P-VV at 1). For the 2013/14 school year, the student attended the in (Exs. P-A at 1, P-B at 1, P-BB at 1, P-
DD at 1, P-JJ at 2, P-TT, P-WW, P-XX, P-YY, P-ZZ). The Commissioner of Education has not approved the as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. -I at 5, SD-2, P-A, P-B, P-Z at 1, P-AA at 1, P-CC at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
The student began receiving in . He received instruction for and was held back year by his parent. The student attended the for the and has been at the since the (Ex. P-VV at 1).
On June 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: group ( )
, (1) time per week for - ( ) minutes per session; , (3) times per week for - ( ) minutes per session; extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 14-16, 94-95, 250-251, 500-501; Exs. -V - -XXIV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
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group ( ) ,
(Exs. SD-2 at 12-15, P-Z at 12-15, P-AA at 1-2).
On June 13, 2013, the DOE provided the parent with prior written notice of its recommendations for the student for the 2013/14 school year (Ex. P-AA). In a Final Notice of Recommendation (“FNR”) dated June 18, 2013, the parent was informed that the student’s recommended would be implemented at on
(Ex. P-CC).
In letters dated June 14, 2013, June 18, 2013, and August 12, 2013, the parent advised the DOE that she was rejecting its proposed for the student and that she intended to enroll the student at the for the 2013/14 school year at public expense (Exs. P-BB, P-DD, P-JJ). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for 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 offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive for the student. The relevant equities also mitigate against a reimbursement/direct payment award. (R. 24-25; Ex. -III).
B. The Parent
The parent is entitled to 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 reimbursement, and/or direct public funding, of the student’s to the (R. 25-30; Exs. -IV, P-B).
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V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v.
T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206-07 (1982).[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. 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 ’s 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) ; 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 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 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.
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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. 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-B at 3-5).
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) (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 and factors, in addition to or developmental factors. See 20 U.S.C. §
1414(b) (C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b) (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 , 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);
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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 for the student for the 2013/14 school year (R. 131; Exs. SD-2, P-Z). See A pplication of a Student with a Disability , Appeal No. 12-017 (SRO February 22, 2012). At the June 11, 2013 meeting, the CSE possessed a May 2013 progress report, a May 2013 spring report from the , a May 2013 and progress report, a May 28, 2013 report from Dr. , a May 2013 progress report, a June 2013 progress report, and a June 10, 2013
/ progress report (R. 110, 112; Exs. P-D, P-E, P-F, P-I, P-N, P-P, P-Q).
The student’s mother attended the June 11, 2013 CSE meeting as did Ms.
from the and Dr. Darlene , the student’s private . Ms. , Dr. , and the student’s mother participated in the meeting’s discussion and gave input regarding the student’s then-current (R.
109-110, 113-114; Exs. SD-2, SD-3, SD-4).
C. Composition of June 2013 CSE
The parent alleges that the June 3013 CSE was not duly constituted in that it lacked a regular education teacher, an additional parent member, and any related service providers (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 ; a representative of the school district qualified to provide or supervise the provision of special education; and an who can interpret the ’s 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)
1. Regular Education Teacher
The IDEA also requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment. See 20 U.S.C. § 1414(d)(1)(B)(ii); 34 C.F.R § 300.321(a)(2); 8 NYCRR §
200.3(a)(1)(ii). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral and other strategies and supplementary aids and services, program modifications, and support for school personnel." 20 U.S.C. §
1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d).
There is no evidence contained in the hearing record which reflects that a regular education teacher participated in the June 11, 2013 CSE meeting. Although dually certified as a special education teacher and a regular education teacher (R. 110, 130), Ms.
signed in at the June 11, 2013 meeting as a special education teacher and as the district representative (Ex. SD-3). While the operative regulations permit an individual to serve on a CSE as both a special education teacher and district representative, see 8 NYCRR § 200.3(a)(1)(v), there is no provision under the law for an individual to serve as both the special education teacher and the regular education teacher.
That said, I find that the absence of a regular education teacher from the June 11, 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-2 at 16, P-Z at 16). See 8 NYCRR § 200.3(a)(1)(ii).
2. Additional Parent Member
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 June
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11, 2013 CSE meeting was permissible (Ex. SD-3).
3. Related Service Providers
The parent also argues that the CSE failed to request the participation of the student's related service providers at the June 2013 meeting. New York State law provides that a CSE shall include "persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual."
8 NYCRR § 200.3(a)(1)(ix). Although the request by a school district for the participation of a student's related service providers is to be encouraged, it is discretionary under State law and I find that the DOE ’s CSE did not violate any procedural requirements by not inviting the student's related service providers to participate. Further, I note that the hearing record reflects that the parent supplied the CSE with all relevant progress reports from the student’s related service providers ahead of the June 2013 meeting (Exs. P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-K, P-L, P-M, P-N, P-O, P-P, P-Q, P-R, P-S, P-T, P-U, P-V, P-W, P-X, P-Y). I also note that the parents were not precluded from inviting the student's related service providers to attend and participate in the June 2013 meeting. See 8 NYCRR § 200.3(a)(1)(ix).
D. Substantive Appropriateness of Proposed
As noted earlier, the IDEA directs that, in general, an impartial ’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.
While there is no apparent dispute between the parties of the student’s need to be educated in a setting in order to learn, as described below, I find that the DOE denied the student a FAPE for the 2013/14 school year because it’s CSE failed
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to recommend, or even consider, extended day or after-school instruction and related services and because the CSE failed to conduct a or develop a to address the student’s interfering .
1. Goals & Objectives
The parent alleges that the annual goals and short-term objectives developed for the student were inappropriate (Ex. P-B at 7-8). 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 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
June 11, 2013 IEP included annual goals in:
. The IEP’s
short term objectives also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal
(R. 119, 123-124, 127, 130; Ex. SD-2 at 4-11, P-Z at 4-11). 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
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City Sch. Dist., 454 F. Supp. 2d 134, 146-147 (S.D.N.Y. 2006).
2. Methodology
The parent asserts that the IEP failed to specify the teaching methodology through which the student’s annual educational goals would be taught and that the core methodology employed by the proposed public school, i.e., , was inappropriate and inadequate to meet the student needs (Ex. P-B at 6-7). A CSE, however, is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. See Rowley, 458 U.S. at 204; M.M. v. Sch. Bd. of M iam i-Dade County, 437 F.3d 1085, 1102 (11th Cir.
2006); Lt. T.B. v. W arwick Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004) (“courts are ill-equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods”); Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 (7th Cir. 1988); F.L. & M.L. v. New Y ork City Dep’t. of Educ., 11–Civ–5131, 2012 WL 4891748, at *9 (S.D.N.Y. 2013) (“parents are not entitled to choose an educational methodology under the IDEA”); A .S. v. New Y ork City Dep’t of Educ., 10-Civ-00009
(E.D.N.Y. May 26, 2011) (noting the “broad methodological latitude” conferred by the IDEA); L.K. v. Dep’t of Educ., 2011 WL 127063, at *11 (E.D.N.Y. Jan. 13, 2011).
Therefore, I find that the absence of a specified methodology on the June 11, 2013 IEP did not deprive the student of a FAPE.
3.
The parent asserts that the CSE failed to include individualized in the student’s IEP (Exs. P-B at 5). State regulations require that an IEP indicate the extent to which will be provided to parents, when appropriate.
See 8 NYCRR § 200.4(d) (v)(b) . State regulations further provide for the provision of for the purpose of enabling parents of students with to perform appropriate at . See 8 NYCRR §
200.13(d).5 Courts have held, however, that a failure to include parent and means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education .
8 NYCRR § 200.1(kk); see also 34 C.F.R. § 300.34(c)(8).
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training on an IEP does not constitute a denial of a FAPE where a school district provided
" " that satisfied the requirements of the State regulation. See R.E., 694 F.3d at 191; M.M. v. New Y ork City D ep't of Educ., 583 F.
Supp. 2d 498, 509 (S.D.N.Y. 2008). The Second Circuit has explained that "because school districts are required by [8 NYCRR] 200.13(d) to provide parent , they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service." R.E., 694 F.3d at 191; see M.W . v. New Y ork City D ep't of Educ., 725 F.3d 131, 141–42 (2d Cir.
2013). The Second Circuit further explained that "[t]hough the failure to include parent in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement." R.E., 694 F.3d at 191.
It is undisputed that the student is eligible to receive special education and related services as a student with (Exs. -I at 5, SD-2, P-A, P-B, P-Z at 1, P-AA at 1, P-
CC at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1). The evidence contained in the hearing record reflects that the CSE recommended which would occur a month in a group setting (Ex. SD-2 at 12, P-Z at 12).
Dr. explained at the hearing that the service provides relevant information to parents on student education and development (R. 216). While the parent may have derived benefit from provided by Dr.
(R. 469-470), that circumstance alone does not render inappropriate the CSE’s recommendation to deliver the service in a group setting (Exs. SD-2 at 12, P-Z at 12). See, e.g., J.S. v. New Y ork City Dep’t of Educ., 65 IDELR 201 (S.D.N.Y. May 6,
2015). Alternatively, I find the parent’s allegation that the implementation of in a group setting violates the privacy mandates of the IDEA and the Family Education Rights and Privacy Act (“ ”), see A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 14-138 at 4 (SRO Oct. 22,
2014), to be without merit.
4. Transportation
The parent asserts that the CSE failed to recommend any special education
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transportation for the student (Ex. P-B at 7). A CSE must make a determination as to whether a student with a disability requires transportation as a related service. See 34 C.F.R. § 300.34(c)(16); Letter to A nonymous, 23 IDELR 832 (OSEP 1995). If a CSE determines that supports or modifications are needed in order the a student with a disability to be transported so that the student can receive a FAPE, the student must receive the necessary transportation and supports at no cost to the parents. See 71 Fed.
Reg. 46,576 (2006).
For students unilaterally placed in private schools, 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 student 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 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).
As there was no evidence entered into the hearing record of the student’s need for special education supports or modifications for transport to a public school, nor of the DOE’s failure to provide suitable transportation of the student to his school, I decline to order any relief on this claim.
5. Eligibility for
The parent asserts that the CSE failed to provide the student with services (Ex. P-B at 5). The IDEA does not automatically require the provision of school services during the summer months; rather, such services must be provided when they are a necessary element of a FAPE to the student. See A ntignano v. W antagh Union Free Sch. Dist., 2010 WL 55908, at *11 (E.D.N.Y. Jan. 4, 2010). Pursuant to State regulations, students "shall be considered for special services and/or programs in accordance with their need to prevent substantial regression, . . . who, because of their
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disabilities, exhibit the need for a special service and/or provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education." 8 NYCRR §§ 200.6(k)(1), (k)(1)(v). State regulation defines substantial regression as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" 8 NYCRR § 200.1(aaa); see also 34
C.F.R. § 300.106.6
At the June 2013 meeting, the CSE determined that the student was ineligible to receive special education services and/or programs during July and August (Exs. SD-2 at 13, P-Z at 13). In contrast, Ms. , the student’s teacher at the , testified that the student “would regress without the . So, while he is in school, and he is getting this repetition and continuity, throughout this . . .
school year, if he were to lose that for those two months, I believe he would regress” (R.
81). Ms. ’s statement alone, however, does not establish that at the time of the June 2013 CSE meeting, the student would exhibit substantial regression, i.e., requiring weeks or more of review instruction, absent a educational .
See C.H. v. Goshen Cent. Sch. Dist., 2013 WL 1285387, at *14-*15 (S.D.N.Y. March 28,
2013) (“While it is true that the burden remains on the District to show that the student did not exhibit a need for [ ] services ‘in order to prevent substantial regression,’ . . . a negative can often be proven only by the absence of the evidence”);
M.W . v. New Y ork City Dep’t of Educ., 869 F. Supp. 2d 320, 334 (E.D.N.Y. 2012)
6 The Office of Vocational and Educational Services for Individuals with Disabilities (VESID) published a guidance memorandum, dated February 2006, which states the following regarding services:
A student is eligible for a twelve-month service or program when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year. The typical period of review or reteaching ranges between 20 and 40 school days. As a guideline for determining eligibility for an extended school year program a review period of eight weeks or more would indicate that substantial regression has occurred (http://www.p12.nysed.gov/specialed/publications/policy/esy/qa2006.htm).
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(describing the purpose of services, which are provided when necessary to prevent substantial regression).[7]
6.
The parent asserts that CSE failed to recommend any extended day services for the student (Ex. P-B at 6). The evidence entered into the hearing record reflects that the CSE failed to give any consideration to programming for the student, but instead relied on DOE policy, custom, and practice in denying the student instructional opportunities beyond the traditional school day (Exs. SD-2, SD-4, P-Z). Dr.
testified that in his opinion, “relevant services to support the student should be provided as part of the child’s school day and school week” (R. 132). He also stated, “my professional opinion is that IEP services should be provided as part of the school day and the school week unless it is practically determined that they cannot be provided such as the unavailability of the provider at the school during the school day, then arrangements would have been made for specific services to be provided otherwise” (R. 169).
Alternatively, while the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom, see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir.
2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine
v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry
County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991), the evidence contained in the hearing record reflects that the student’s after-school was designed to address his educational needs in, and receive educational benefits from, his school (R. 392,
398, 400), cf. A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-198 at 19
(SRO Dec. 13, 2013). Dr. testified that the student displayed significant academic, social, and delays for which he was provided per week of after-school, along with / , , ’s , and (R. 393-394; Exs. P-I, P-N, P-P, P-Q, P-UU). In the after-school , the student received instruction on , , , and (R. 430-431; Exs. P-I, P-N, P-
P, P-Q, P-UU).
7. Special Factors - Interfering
The parent asserts that the CSE failed to develop an appropriate
(“ ”) and an appropriate (“ ”)
for the student to address his interfering (Ex. P-B at 3-4).8
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose impedes his or her learning or that of others, the CSE shall consider positive
, and other strategies, to address that . See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); 8 NYCRR § 200.4(d)(3)(i); see also E.H. v. B oard of Educ., 361 Fed. Appx. 156, 161 (2d Cir. 2009); A .C., 553 F.3d at 172; J.A . v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009);
M.M . v. New Y ork City D ep't of Educ., 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008);
Tarlow e, 2008 WL 2736027, at *8; W .S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-
50 (S.D.N.Y. 2006). To the extent necessary to offer a student an appropriate educational
, an IEP must identify the supplementary aids and services to be provided to the student. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); 8 NYCRR §§
200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. Sept. 29, 2009); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371,
380 (2008).
In New York State, policy guidance explains that "the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular means the process of determining why a student engages in that impede learning and how the student's relates to the environment. The shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem , the definition of the in concrete terms, the identification of the contextual factors that contribute to the (including and affective factors) and the formulation of a hypothesis regarding the general conditions under which a usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).
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device or service (including an , accommodation or other modification) to address," "in order for the student to receive a [FAPE]." See Guide to Quality Individualized Education (IEP) Development and Implementation at 22 (Office of Special Educ. Dec.
2010) av ailable at IEPguideDec2010.pdf. "The i s and/or supports should be indicated under the applicable section of the IEP," "
" " Id.
State procedures for considering the special factor of a student's that impedes his or her learning or that of others may also require that the CSE consider having an conducted and a developed for a student. See 8 NYCRR §§ 200.4(d)(3)(i),
200.22(a), (b). According to State regulations, an shall be based on multiple sources of data and must be based on more than the student's history of presenting problem
. See 8 NYCRR § 200.22(a) . An must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement." See 8 NYCRR § 200.22(a)(3). Although state regulations call for the procedure of using an when developing a , the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's , leading to their being addressed in the IEP inadequately or not at all."
See R.E., 694 F.3d at 190. The Court also noted that "[t]he failure to conduct an will not always rise to the of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors. See id.
With regard to a the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [ ] for a student with a disability when: (i) the student exhibits , despite consistently implemented general school-wide or
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classroom-wide i s; (ii) the student's
; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s ; and/or (iv) as required pursuant to" 8 NYCRR 201.3. See 8 NYCRR § 200.22(b)(1). Once again, "[i]f a particular device or service, including an , accommodation or other modification is needed to address the student’s that impedes his or her learning or that of others, the IEP shall so indicate." 8 NYCRR § 200.22(b) . If the CSE determines that a is necessary for a student "the [ ] shall identify: (i) the baseline measure of the problem
, including the duration, intensity and/or latency of the targeted
. . . ; (ii) the strategies to be used to alter antecedent events to prevent the occurrence of the , teach alternative and to the student, and provide consequences for the targeted inappropriate
(s) and alternative acceptable (s); and (iii) a schedule to measure the effectiveness of the i s, including the frequency, duration and intensity of the targeted at scheduled intervals. 8 NYCRR § 200.22(b)(4).[9] Neither the IDEA nor its implementing regulations require that the elements of a student's be set forth in the student's IEP. See Student Needs Related to Special Factors (Office of April 2011), av ailable at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf. However, a student's is developed and implemented, "such plan shall be reviewed at least annually by the CSE or CPSE." See 8 NYCRR § 200.22(b) . Furthermore, "[t]he implementation of a student’s [ ] shall include regular progress monitoring of the frequency, duration and intensity of the i s at scheduled intervals, as specified in the [ ] and on the student's IEP. The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's [ ] or IEP" 8 NYCRR §
200.22(b) .
The evidence entered into the hearing record demonstrates that the CSE’s failure
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to fully identify the student’s interfering in an , or to include sufficient strategies in the June 11, 2013 IEP, or in a , to address the student’s needs relating to contributed to a denial of a FAPE to the student
(R. 60-61, 178-179, 189, 291, 445; Exs. SD-2, P-Z). See C.F. v. New Y ork City Dep’t of Educ., 746 F.3d 68, 80-81 (2d Cir. 2013); A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-124 at 6-8 (SRO Dec. 30, 2014). It is undisputed that the CSE failed to develop either an or a at the June 11, 2013 meeting (R. 121-122; Exs. SD-2 at 4, P-Z at 4). Dr. stated at the hearing that are only developed for students who exhibit or engage in
(R. 122, 159, 183, 449, 451). Dr. stated that the student here did not meet that criteria because his were “ ” by the teaching staff without additional (R. 122-123, 178).
In contrast, Ms. , the student’s counselor at the , credibly testified that the student’s impulsivity and inattentiveness impact his learning (R.
291). Ms. stated that she has observed the student become distractive in the classroom and call out impulsively (R. 291). Ms. also testified that the student was “ ” (R. 60-61). Dr. credibly testified that the student exhibited significant needs and social delays which interfered with his academic performance and warranted an and a (R. 393-394, 397). Dr.
stated that some of the addressed in the student’s included: (R. 393).
E. Appropriateness of Proposed Placement
The parent alleges that 2as inappropriate and would not have been able to meet the student’s educational needs (Ex. P-B at 8-10).
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 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
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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
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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 June 2013 IEP at the is speculative insofar as the parent did not accept the June 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. P-B, P-BB, P-DD, P-JJ). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at .
F. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during ’s the 2013/14 school year, I turn to the appropriateness of the parent’s private .
With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. B oard of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert.
denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65.
When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also W eaver v. Millbrook Cent. Sch. Dist., No. 09-CV-
692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Ms. , Ms. , Ms. , Ms. Dr.
, and the parent, I find that the , along with the student’s , was an appropriate for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 66-67, 69, 71, 76, 83, 298-299, 303, 313, 331, 334, 351, 400, 464, 474-476;
Exs. P-TT, P-UU, P-WW, P-XX, P-YY, P-ZZ).
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The evidence contained in the hearing record reflects that during the 2013/14 school year, the educated approximately in classes
(R. 38). Students at the receive instruction in a Common
Core-aligned curriculum (R. 39, 80). During the 2013/14 school year, the student received instruction in a at the (R. 43). The student received instruction in literacy and in groups of students (R. ). The student also received related services of , / and (R. 48-49, 287-288, 328-329, 341, 343). accommodations provided to the student at the included: , -to-
, ,
, and (R. 64, 80-81). Every
(R. 47, 305,
332, 350).
The used a plan called, “ ” and Ms.
developed an positive plan for the student as well (R. 62-63,
273-274, 307, 318). At the , the student was provided with tools of and a to help him maintain attention in class, and access to a with to maintain (R. 56-57, 83,
345-346). The offered a number of and support opportunities (R. 88-89). The team worked with Dr. to ensure academic and social consistency between the student’s school and after-school programs (R. 50-53, 431). Dr. developed a checklist to reinforce skills the student worked on in school (R. 277).
Alternatively, while the DOE argues that the was not appropriate for the student because it did not offer him (R. 271; Ex. -III at 12), parents need not show that the private placement provides every special service necessary to maximize the student’s potential, see Frank G., 459 F.3d at 364-65.
G. Relevant Equities
The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to ’s fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. V oluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable of reimbursement that should be required.
Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R.
§ 300.148(d); S.W . v. New Y ork City D ep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New Y ork City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb.
4, 2008); M.V . v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan.
2, 2008); Bettinger v. New Y ork City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y.
Nov. 20, 2007); Carm el Cent. Sch. Dist. v. V .P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y.
2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); W erner v.
Clarkstow n Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch.
Dist. v. A m y N ., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See
’s
Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir.
2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V . v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of reimbursement and/or direct payment for the student’s unilateral placement at the for the 2013/14 school year. In letters dated June 14, 2013, June 18, 2013, and August 12, 2013, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the at public expense for the 2013/14 school year (Exs. P-BB, P-
DD, P-JJ). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (indeed, she made multiple efforts to ensure that the DOE had all of his private school and home provider reports) (R. 459; Exs. SD-3, SD-3, SD-4, P-J, P-K, P-L, P-M, P-T, P-U, P-V, P-
W, P-Y, P-Z), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s to the was unreasonable (R. 487, 489), see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education for the 2013/14 school year is SUSTAINED; and within thirty (30) days of its receipt of this Order, the DOE shall:
(1) reimburse the parent for all costs associated with the student’s unilateral private placement at the for the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement; and
(2) reimburse the parent, and/or directly pay for, all costs associated with the student’s (specified below) which were not otherwise funded via the October 30, 2013 Interim Order on Pendency;
(a) hours per week of ;
(b) - ( ) minute sessions per week of
’s
/ ;
(c) minute sessions per week of
/ ;
(d) minute sessions per week of
;
(e) minutes sessions per week of
;
(f) hours per week of ; and
(g) hours per month of supervision.
Dated: July 2, 2015
JEFFREY J. SCHIRO, ESQ.
Impartial
’s
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.
’s
DOCUMENTATION ENTERED INTO RECORD
PARENTS (double sided)
A. Due Process Complaint Notice/Impartial Hearing Request, 7/12/13, 13 PGS.
B. Amended Due Process Complaint Notice/Impartial Hearing Request, 10/8/13, 13
pgs.
C. Findings of Fact & Decision, , 4/16/08, 12 pgs.
D. Progress Report ( ), 5/2013, 4 pgs.
E. Spring Report 2012/13 ( ), 5/2013, 10 pgs.
F. / Progress Report ( ), 5/2013, 4 pgs.
G. Letter to (CSE) from Parent, 5/26/13, 2 pgs.
H. Letter to (CSE) from Parent, 5/26/13, 2 pgs.
I. Report - The Experts, LLC, 5/28/13, 11 pgs.
J. Letter to (CSE) from Parent, 5/26/13, 2 pgs.
K. Letter to (CSE) from Parent, 5/26/13, 2 pgs.
L. Letter to (CSE) from Parent, 5/30/13, 2 pgs.
M. Letter to (CSE) from Parent, 5/30/13, 2 pgs.
N. Progress Report ( ), 5/2013, 3 pgs.
O. Letter to (CSE) from Parent, 5/31/13, 2 pgs.
P. Progress Report, 6/2013, 3 pgs.
Q. / Progress Report, 6/10/13, 4 pgs.
R. Letter to (CSE) from Parent, 6/3/13, 2 pgs.
S. E-mails to C. from Parent, 6/6/13, 3 pgs.
T. Letter to (CSE) from Parent, 6/8/13, 2 pgs.
U. Letter to (CSE) from Parent, 6/8/13, 2 pgs.
V. Letter to C. from Parent, 6/10/13, 2 pgs.
W. Letter to C. from Parent, 6/10/13, 2 pgs.
X. E-mails to C. from Parent, 6/10/13, 2 pgs.
Y. Letter to C. from Parent, 6/10/13, 2 pgs.
Z. Individualized Education (IEP), 6/11/13, 19 pgs.
AA. Prior Written Notice, 8/13/13, 3 pgs.
’s
BB. Letter to (CSE) from Parent, 6/14/13, 3 pgs.
CC. Final Notice of Recommendation (FNR), 6/18/13, 5 pgs.
DD. Letter to from Parent, 6/18/13, 4 pgs.
EE. Letter to parent from (CSE), 6/24/13, 2 pgs.
FF. Letter to from Parent, 6/24/13, 4 pgs.
GG. Letter to (CSE) from Parent, 6/27/13, 3 pgs.
HH. Letter to from Parent, 7/15/13, 3 pgs.
II. Letter to from Parent, 8/1/13, 3 pgs.
JJ. Letter to (CSE) from Parent, 8/12/13, 4 pgs.
KK. Letter to (CSE) from Parent, 8/12/13, 4 pgs.
LL. [Reserved]
MM. [Reserved]
NN. [Reserved]
OO. [Reserved]
PP. [Reserved]
QQ. [Reserved]
RR. [Reserved]
SS. [Reserved]
TT. Mid-Year Report 2013/14 ( ), 2/2014, 10 pgs.
UU. Report - The Experts, LLC, 3/17/14, 14 pgs.
VV. Consultation, 4/7/14, 10 pgs.
WW. Progress Report ( ), 5/2014, 4 pgs.
XX. Progress Report ( ), 5/2014, 3 pgs.
YY. / Progress Report ( ), 5/2014, 3 pgs.
ZZ. Spring Report 2013/14 ( ), 5/2014, 9 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Individualized Education (IEP), 6/11/13, 16 pgs.
3. Attendance Page, 6/11/13, 1 pg.
’s
4. Meeting Minutes, 6/11/13, 5 pgs.
IMPARTIAL
I. Interim Order on Pendency, 10/30/13, 9 pgs.
II. Interim Order on Consolidation, 10/31/14, 5 pgs.
III. DOE Closing Brief & Memorandum of Law, 8/15/14, 15 pgs.
IV. Parent’s Post-Hearing Brief, 8/15/14, 31 pgs.
V. Confirmation of Extension, 8/12/13, 1 pg.
VI. Confirmation of Extension, 12/4/13, 1 pg.
VII. Confirmation of Extension, 1/8/14, 1 pg.
VIII. Confirmation of Extension, 2/7/14, 1 pg.
IX. Confirmation of Extension, 3/10/14, 1 pg.
X. Confirmation of Extension, 3/19/14, 1 pg.
XI. Confirmation of Extension, 4/24/14, 1 pg.
XII. Confirmation of Extension, 5/29/14, 1 pg.
XIII. Confirmation of Extension, 7/4/14, 1 pg.
XIV. Confirmation of Extension, 7/30/14, 1 pg.
XV. Confirmation of Extension, 9/5/14, 1 pg.
XVI. Confirmation of Extension, 10/2/14, 1 pg.
XVII. Confirmation of Extension, 11/3/14, 1 pg.
XVIII. Confirmation of Extension, 12/5/14, 1 pg.
XIX. Confirmation of Extension, 1/4/15, 1 pg.
XX. Confirmation of Extension, 2/4/15, 1 pg.
XXI. Confirmation of Extension, 2/23/15, 1 pg.
XXII. Confirmation of Extension, 4/3/15, 1 pg.
XXIII. Confirmation of Extension, 5/3/15, 1 pg.
XXIV. Confirmation of Extension, 6/2/15, 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, in order to allow the parties adequate time to prepare their post-hearing briefs, and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the 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
[3] A utism means a developmental disability significantly affecting and communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with are engagements in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of after age 3 could be diagnosed as having if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
[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.
[7] Additionally, the hearing record reflects that the student attended the on a ( ) month basis (R. 263).
[9] The Official Analysis of Comments to the federal regulations explains that the decision regarding whether a student such as a rests with the CSE and is made on an basis. See Consideration of Special Factors, 71 Fed. Reg. 46683 (Aug. 14, 2006).