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: December12, 2013
January 22, 2015
March 2, 2015
Actual Record Closed Date: July 10, 2015
Hearing Officer: Jeffrey Schiro, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2013
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 22, 2015
ESQ., Attorney — Student
Parents
District Representative — DOE
CSE Office Clerk (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 2, 2015
ESQ., Attorney — Student
Parents
Program Director, (via telephone) — Student
District Representative — DOE
Teacher Assigned to CSE (via telephone) — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parents in a due process complaint notice dated September 9, 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 parents, and/or directly pay for, costs associated with the student’s unilateral private placement at the (the “ ”) for the 2013/14 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”)
typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The
IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR §
200.5(k).
II. PROCEDURAL HISTORY
On October 8, 2013, the parents filed an amended due process complaint (Ex. P-
D). See 8 NYCRR § 200.5(i)(7). The DOE appointed me to hear this matter on October 16, 2013 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i).
At a hearing held on December 12, 2013, the parents moved for an interim order on pendency (R. 8-9; Ex. P-D at 2). The DOE did not oppose the parents’ motion (R. 9). On
February 27, 2014, I rendered an Interim Order on Pendency which directed the DOE to provide the student with hours of (“ ”) services per week at public expense, effective September 9, 2013, until such time as the due process proceedings in this matter are concluded (Ex. IHO-I at 7).
Hearings in this matter was thereafter held on January 22, 2015 and March 2, 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 October 8, 2013 amended due process complaint, the student was years old and has been diagnosed with an (Exs. SD-
6 at 1, SD-12 at 3). For the 2013/14 school year, the student attended the in
(Exs. Ex. P-A, P-C, P-D, P-H, P-I, P-J, P-K, P-L, P-M, P-N). The
Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. SD-6 at 1, SD-7,
SD-10 at 1, SD-15). See 34 C.F.R. § 300.8(c)(1);[8] NYCRR § 200.1(zz)(1).3
On February 27, 2013, the student was administered the (“ ”) as part of a reevaluation of her performance. The student’s , as estimated by the , was in the range ( ). The student’s general abilities were in the range ( ), and abilities were in the range ( ). On the (“ ”), the student demonstrated skills than skills (Exs. SD-6 at 1, SD-12 at 3).
In a notice dated February 21, 2013, the CSE invited the parents to attend a meeting on March 5, 2013 (Ex. SD-5). On March 5, 2013, the CSE convened to develop an IEP for the student for the 2013/14 school year. The CSE recommended that the student receive (“ ”) services in areas in a school on a month basis.4 The CSE also recommended that the student receive related services of: transportation; , times per week for minutes per session; , times per week for minutes per session; / , time per week for minutes per session; and
/ , time per week for minutes per session (Ex.
SD-6 at 6, 8-9).
In a letter dated June 18, 2013, the parents informed the CSE of their concern that an program would be insufficient to meet the student’s needs. The parents also objected to the CSE’s failure to recommended services for the student. The parents requested that the CSE reconvene to discuss her concerns (Ex. SD-8).
In a final notice of recommendation (“FNR”) dated July 25, 2013, the DOE informed the parents that the student’s recommended program would be implemented at in (Ex. SD-7).
In a notice dated August 6, 2013, the CSE invited the parents to attend a meeting on August 22, 2013 (Ex. SD-9). On August 22, 2013, the CSE reconvened to revise the student’s program for the 2013/14 school year. The CSE recommended that the student receive the majority of her instruction in a in a school on a month basis. The CSE also recommended that the student receive related services of: transportation; , times per week for minutes per session; , periods per week for minutes per session; / , periods per week for minutes per session; / , periods per week for minutes per session; and the services of a (Ex. SD-10 at 6-7, 9-10).
In a letter dated August 23, 2013, counsel for the student advised the CSE that the See 8 NYCRR § 200.6(g) parents were rejecting its proposed program and would unilaterally place the student at the for the 2013/14 school year at public expense (Ex. P-C).
In an FNR dated August 29, 2013, the DOE advised the parents that the student’s recommended program would be implemented at in (Ex. SD-15). 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 the for the 2013/14 school year should be denied.
The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award. (R. 212-220).
B. The Parents
The parents are entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at the during the 2013/14 school year. The DOE denied the student a free appropriate public education. The parents never received a written copy of the student’s IEP. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the (R. 202-211; Exs. P-A, P-
C, P-D).5
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).[6]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" W alczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v.
Carm el Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c)
caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M .H., 685 F.3d at 245; A .H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); 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 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. Timing of IEP Transmission
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 parents allege that the CSE failed to timely transmit its IEP to them prior to the onset of the 2013/14 school year (Ex. P-D at 3).
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. See 20 U.S.C.
§ 1412(a)(1)(A); N.Y. Educ. Law §§ 4402(2)(a), (b)(2). 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 district must have an IEP in effect at the beginning of each school year for each student with a disability in its jurisdiction.”
A pplication of the New Y ork City Dep’t of Educ., Appeal No. 11-016 at 14 (SRO April 13, 2011), citing 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; Tarlow e, 2008 WL 2736027, at *6.
The parents assert that they did not receive a copy of the August 22, 2013 IEP or the August 29, 2013 FNR until after the onset of the 2013/14 school year (Ex. P-D at 3-
4). The DOE failed to offer any credible evidence at the hearing to establish that it transmitted its IEP to the parents in a timely manner. I take judicial notice, see Fed. R.
Evid. 201(b), that public schools operated by the DOE opened on September 9, 2013 for the 2013/14 school year. A SESIS events log entered into the hearing record reflects that a duplicate copy of the August 29, 2013 FNR was sent to the parents on September 26, 2013. There is no entry in the SESIS events log of the August 22, 2013 ever having been transmitted to the parents after it was finalized on August 29, 2013 (Ex. SD-17 at 1).
Testimony offered by Ms. , a CSE office clerk, did not establish a presumption of mailing, i.e., the common procedure used in the office for taking documents and placing them in the stream of mail. Ms. did not discuss the process by which the envelopes were addressed or labeled, the process by which postage is placed on CSE mail, or the process by which envelopes containing IEPs or related documents are placed in the mail (R. 31-37). I therefore find that the CSE’s failed to have an IEP in place for the student at the beginning of the 2013/14 school year and that this omission impeded the student's right to a FAPE and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
C. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2013/14 school year, I turn to the appropriateness of the parents’ private program.
With respect to the second criterion for an award of reimbursement, the parents 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. and the parent, I find that the was an appropriate program for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 117-201; Exs. P-G, P-
I, P-J, P-K, P-L, P-M, P-N).
D. 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 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 level 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
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 tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2013/14 school year.
In a letter dated August 23, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2013/14 school year (Ex. P-C). 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 parents were uncooperative with the CSE (Exs. SD-1, SD-6, SD-8, SD-10, SD-12, SD-17), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the was unreasonable
(Ex. P-H), 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 parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2013/14 school year is GRANTED; and within thirty
(30) days of its receipt of this Order, the DOE shall reimburse the parents 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.
Dated: August 3, 2015 Corrected Date: August 4, 2015 (Correction made to cover page)
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, 9/9/13, 5 pgs.
B. CPSE Notice of Recommendation, 8/8/11, 1 pg.
C. Notice of Unilateral Placement, 8/23/13, 4 pgs.
D. Amended Due Process Complaint Notice/Impartial Hearing Request, 10/8/13, 5
pgs.
E. [Reserved]
F. Report, 5/22/14, 2 pgs.
G. Program Description & Mission Statement, undated, 3 pgs.
H. Enrollment Contract & Addenda, 9/9/13, 4 pgs.
I. Daily Schedule, 2013/14, 1 pg.
J. Educational Plan with Progress Reports, 2013/14, 10 pgs.
K. Progress Report, 1/2014, 2 pgs.
L. Progress Report, 2/2014, 1 pg.
M. Progress Report, 2/2014, 1 pg.
N. Progress Report, 2/2014, 1 pg.
O. U.S. Individual Income Tax Return, 2012, 3 pgs.
DEPARTMENT OF EDUCATION
1. Consent for Testing, 2/27/13, 1 pg.
2. Appointment Letter, 1/22/13, 1 pg.
3. Appointment Letter, 1/30/13, 1 pg.
4. Appointment Letter, 2/13/13, 1 pg.
5. Notice of IEP Meeting, 2/21/13, 3 pgs.
6. Individualized Education Program (IEP), 3/5/13, 11 pgs.
7. Final Notice of Recommendation (FNR), 7/25/13, 1 pg.
8. Letter to (CSE) from parent w/ Report, 6/18/13, 2 pgs.
9. Notice of IEP Meeting, 8/6/13, 3 pgs.
10. Individualized Education Program (IEP), 8/22/13, 11 pgs.
11. ( )/ ( ), 3/5/13,
3 pgs.
12. Psychoeducational Evaluation Report, 2/27/13, 3 pgs.
13. Progress Report, 1/2012, 2 pgs.
14. Progress Report, 2/2013, 1 pg.
15. Final Notice of Recommendation (FNR), 8/29/13, 1 pg.
16. Update, 1/2013, 1 pg.
17. SESIS Events Log, 4/27/12 - 11/22/13, 2 pgs.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 2/27/14, 9 pgs.
II. Confirmation of Extension, 11/25/13, 1 pg.
III. Confirmation of Extension, 12/12/13, 1 pg.
IV. Confirmation of Extension, 1/27/14, 1 pg.
V. Confirmation of Extension, 5/8/14, 1 pg.
VI. Confirmation of Extension, 5/29/14, 1 pg.
VII. Confirmation of Extension, 7/4/14, 1 pg.
VIII. Confirmation of Extension, 7/30/14, 1 pg.
IX. Confirmation of Extension, 9/10/14, 1 pg.
X. Confirmation of Extension, 10/6/14, 1 pg.
XI. Confirmation of Extension, 11/10/14, 1 pg.
XII. Confirmation of Extension, 12/10/14, 1 pg.
XIII. Confirmation of Extension, 1/4/15, 1 pg.
XIV. Confirmation of Extension, 2/9/15, 1 pg.
XV. Confirmation of Extension, 3/11/15, 1 pg.
XVI. Confirmation of Extension, 4/9/15, 1 pg.
XVII. Confirmation of Extension, 5/10/15, 1 pg.
XVIII. Confirmation of Extension, 6/9/15, 1 pg.
XIX. Confirmation of Extension, 7/9/15, 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 (R. 12-14, 47-48, 221-222; Exs. IHO-II - IHO-XIX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[5] The parties stipulated at the hearing that the issue of the appropriateness of services for the student during the 2013/14 school year was now moot by virtue of my February 27, 2014 Interim Order on Pendency (R. 45-47; Ex. IHO-I).
[8] NYCRR § 200.1(zz)
[6] 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.