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: December 22, 2014
January 26, 2015
April 14, 2015
Actual Record Closed Date: September 17, 2015
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2014
Advocate — Student
Parents
DR., District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2015
Advocate — Student
Parents
DR., District Representative, — DOE
School — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 14, 2015
Advocate — Student
Parents
Representative (via telephone) — Student
DR., District Representative, — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for the student and the parent in a due process complaint notice dated October 7, 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 for Special Education (“ ”) in for the 2012/13 school year (Ex. P-A).[1]
When a student in New York is eligible for , 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 , 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 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 November 14, 2013, the DOE appointed me to serve as the hearing officer in this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were held on: December 22, 2014; January 26, 2015; and April 14, 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 7, 2013 due process complaint, the student was years old and has been diagnosed with an (“ ”) (Exs.
SD-1 at 2, SD-6 at 1, 3, SD-7 at 1). During the 2012/13 school year, the student attended , which has not been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities (Exs. P-G, P-H, P-L). See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and as a is not in dispute in this hearing (Exs. SD-1 at 1, SD-2, P-A). See 34 C.F.R. § 300.8(c)( ); 8 NYCRR § 200.1(zz)( ).3
During the 2010/ school year, the student attended the at the in , where she was enrolled in the program (Exs. SD-4 at 1, SD-7 at 1).
On December 20, 2010, the student participated in a psychoeducational evaluation conducted by the DOE. On the , the student received a ( ). The student’s
,
( ). The student’s ,
( ). The student’s
). The student’s
( ) (R. 30-31; Ex. SD-7 at 2-3).
The student was also administered the
. Academically, the student performed below grade level in . The student’s ( )
was in the . The student’s
im pairm ent means a disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s performance. 8 NYCRR § 200.1(zz)(11). the test results, the student’s (R. 31-
32; Ex. SD-7 at 10-12).
During the 2011/12 school year, the student attended the at the in its program (R. 27; Exs. SD-4 at 1, SD-6 at 1). The student’s class at that time comprised ( ) students with (Exs. SD-4 at 1, SD-5 at 5).
On April 18, 2012 the student was read ministered the as part of an evaluation by the DOE. While the student’s
(R. 34-35; Ex. SD-6 at 2-3).
On a May 15, 2012 report, the student’s special education teacher noted that the student “
(Ex. SD-5 at 5).
On May 15, 2012, the CSE convened to develop an IEP for the student for the 2012/13 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 of:
; , recommendation (“FNR”) dated May 17, 2012, the DOE advised the parents that the student’s recommended program would be implemented at in (Ex. SD-2).
In a letter dated August 30, 2012, the parent advised the CSE that she was rejecting its proposed program for the student and would unilaterally place the student at for the 2012/13 school year at public expense (Ex. P-E). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at during the 2012/13 school year should be denied.
The DOE offered the student a free appropriate public education in the least restrictive environment. did not provide the student with an appropriate program and it was overly restrictive for her. The relevant equities also mitigate against a reimbursement, and/or a direct payment, award (R. 17-18).
B. The Parent
The parent is entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at during the 2012/13 school year. The DOE denied the student a free appropriate public education. appropriately addressed the student’s unique needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to (Ex. P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v.
T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206-07 (1982).4
The term “free appropriate public education” means special education and that –
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 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 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); W inkelman v. Parma City Sch. Dist., 550
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State 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. 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 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 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 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 , 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 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 services rendered where B urlington/Carter factors are satisfied. M r. A . v.
New Y ork City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W . v.
New Y ork City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v.
Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Composition of May 2012 CSE
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 May 2012 CSE was not duly constituted (Ex. P-A at 1).
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 regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least special education teacher of the student, or if appropriate, at least special education provider of the child; a school ; a representative of the school district qualified to provide or supervise the provision of special education; and an individual who can interpret the evaluations being reviewed by the CSE. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
The hearing record reflects that the May 2012 CSE was duly constituted. Present at that meeting was: Ms. , the student’s special education teacher from ; Ms. , a general education teacher; the parent; Ms.
, a district representative; Ms. , a school ; Ms.
, an ; Ms. and Ms. , student
and parent advocates; Ms. , an additional parent member; and Ms.
, of (R. 40-41; Ex. SD-1 at 14). The hearing record reflects that prior to the May 2012 meeting, Ms. conducted a classroom observation of the student, and Ms. had conducted both and testing of the student (R. 23, 28, 33; Exs. SD-4, SD-6, SD-7).
B. Parent Participation
The parent asserts that the May 2012 CSE did not provide her with the opportunity to meaningfully participate in the preparation of the student’s IEP and did not consider her requests (Ex. P-A at 2).
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. See
E.H. v. Bd. of Educ., 361 Fed. App'x 156, 160 (2d Cir. 2009); E.F. v. New Y ork City D ep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. Aug. 19, 2013) (holding that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions");
DiRocco v. Bd. of Educ., 2013 WL 25959, at *18-*20 (S.D.N.Y. Jan. 2, 2013); P.K. v.
Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008)("A professional disagreement is not an IDEA violation"); Sch. For L anguage and Commc'n Development
v. New Y ork State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006)
("Meaningful participation does not require deferral to parent choice").
The hearing record reflects that the parent was afforded the opportunity to participate in the May 2012 CSE meeting (R. 48-49). Ms. , who attended the May 2012 CSE meeting, testified that her April 2012 evaluation was shared with the parent prior to the CSE meeting and discussed with the parent at the meeting (R. 36; Ex. SD-6). Likewise, Ms. testified that Ms. ’s May 2012 classroom observation report was shared with the parent prior to the CSE meeting and discussed with the parent at the meeting (R. 37-38; Ex. SD-1, SD-4). Ms. credibly testified that the CSE also discussed the student’s and , her , and the student’s ability to relate to others (R. 39-40,
42; Ex. SD-1). In her due process complaint, the parent acknowledged that the student’s then-current “special education teacher [Ms. ] was a member of this IEP team and shared with the team information concerning [the student’s]
and her classroom (Ex. P-A at 1-2). Ms. testified that the parent shared with the committee her concerns about the student’s comprehension, her ability to work independently, her ability to , and the
(R. 49-50; Ex. SD-1 at 2). Ms. testified that the CSE then developed the student’s annual goals based on the information presented of the student’s academic, social, and physical needs (R. 43; Exs. SD-1 at 4-6, SD-3).
C. Substantive Appropriateness of Public Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient 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.
The parent asserts that the CSE failed to draft an IEP that was reasonably calculated to confer benefit to the student. The parent also asserts that the mandates are not sufficient to provide the student with the necessary support she requires in order to progress (Ex. P-A at 1-2).
The evidence contained in the hearing record reflects that during the 2010/11 and 2011/12 school years, the student attended the and participated in its program. The student’s class at that time comprised ( ) students with (R. 27, 57; Exs. SD-4 at 1, SD-5 at 5,
SD-6 at 1, SD-7 at 1). Ms. , the student’s special education teacher at , stated that the student had made “good progress” in her class and benefitted from (Ex. SD-5 at 3-5).
For the 2012/13 school year, the CSE recommended that the student receive the majority of her instruction in a in a school on a month basis (R. 43; Ex. SD-1 at 7). The CSE also recommended that the student receive of: ; and
; and (R. 44; Ex. SD-1 at 7-8). The CSE further recommended that the student receive program modification of:
(Ex. SD-1 at 3). In considering the student’s possible receipt of (“ ”) services, as an alternative to instruction, the CSE noted that the student “continues to require throughout the day.[5] Her needs cannot be addressed in a large setting” (Ex. SD-1 at 13).
There is no evidence that the parent or her advocates objected to the CSE’s program or recommendations for the student at the May 2012 meeting (R. 44, 63; Exs.
SD-1, SD-3).
Based on the foregoing, I find that the CSE’s recommended program offered the student personalized instruction with sufficient to permit the child to benefit educationally from that instruction. The CSE’s recommended program was consistent with the instructional model the student had received in prior years which had, reportedly, provided the student with meaningful benefit.
D. Challenge to Assigned School Placement
The parent assert that the recommended program could not provide the student with an appropriate (Ex. P-A at 2).
Challenges to an assigned public school site are generally relevant to whether the school district properly implemented a student's IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the school district's offered program must be determined on the basis of the IEP itself. See
R.E., 694 F.3d at 186-88. The Second Circuit has explained that the parents'
"[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." See R.E., 694 F.3d at 195; see also F.L. v.
New Y ork City D ep't of Educ., 553 Fed. App'x 2, 9 (2d Cir. Jan. 8, 2014); K.L. v. New
Y ork City D ep't of Educ., 530 Fed. App'x 81, 87 (2d Cir. July 24, 2013).
The Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child," P.K. v. New Y ork City D ep't of Educ., 526 Fed. App'x 135, 141, 2013 WL 2158587 (2d Cir. May 21, 2013), and, even more clearly, that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed," K.L., 530 Fed. App'x at 87, quoting R.E., 694 F.3d at 187; see also C.F. v.
New Y ork City D ep't of Educ., 746 F.3d 68, 79 (2d Cir.2014).
More recently, however, the Second Circuit has further clarified that while it is speculative to conclude that a school with the capacity to implement a given student's IEP will simply fail to adhere to that plan's mandates, see R.E., 694 F.3d at 195, it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP, see M .O. v. New Y ork City Dep’t of Educ., 793 F.3d 236, 244 (2d Cir. 2015).[6] School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP's requirements,” T.Y . v. N.Y .C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir.2009), and R.E. does not foreclose all prospective challenges to a proposed placement school's capacity to implement a child's IEP, see M.O., 793 F.3d at
244. To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school's capacity to implement their child's IEP, which is “antithetical to the IDEA'[s] reimbursement process.” See V .S. ex rel.
D.S. v. N.Y .C. Dep't of Educ., 25 F. Supp. 3d 295, 300 (E.D.N.Y.2014).
The evidence contained in the hearing record demonstrates that the DOE issued a timely FNR to the parents on May 17, 2012, indicating that the student’s recommended program would be implemented at . In a note dated June 18, 2012, the parent acknowledged receiving the DOE’s May 17, 2012 FNR (Ex. SD-2, P-D).
Turning to the parent's allegations that the proposed placement could not implement the mandates and that the proposed classroom would not be functionally grouped appropriately for the child (Ex. P-A at 2), I note that those issues are speculative insofar as the parents did not accept the recommendations of the CSE or the program offered by the DOE (Exs. P-A, P-D) and, furthermore, I note that the hearing record, in its entirety, does not support the conclusion that, had the student attended , the school would have deviated from substantial or significant provisions of the student's IEP in a material way thereby precluding the student from the opportunity to receive benefits. See Rowley, 458 U.S. at 206-07; A .P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. Mar. 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005).
Alternatively, while the parent alleges that a school official at told the parent that the school did not have a sixth grade class (Ex. P-D), I give little weight to that hearsay statement, see M.C. v. New Y ork City Dep’t of Educ., 65 IDELR 290 (S.D.N.Y.
July 15, 2015), since the parent claimed at the hearing that the reason she rejected the school was that the class was full at the time of her site visit in September 2012
(R. 132). As the parent provided the DOE with written notice of her rejection of the CSE’s proposed program for the student in June 2012 (and again in August 2012) (Exs. P-
D, P-E), the DOE was not required to hold a seat for the student after that point in time.
Having determined that the DOE offered the student a FAPE for the 2012/13 school year, it is not necessary to reach the issues of whether the student’s private placement at was appropriate or whether equitable considerations support the parent's tuition reimbursement claim. See M.C. v. V oluntown, 226 F.3d 60, 66 (2d Cir.
2000); W alczak, 142 F.3d at 134.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to for the 2012/13 school year is DENIED.
Dated: October 7, 2015
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 10/7/13, 4 pgs.
B. Program Description, undated, 1 pg.
C. [Reserved]
D. Final Notice of Recommendation (FNR) w/ note from parent, 5/17/12, 2 pgs.
E. Ten Day Notice, 8/30/12, 2 pgs.
F. Daily Schedule, 2012/13, 1 pg.
G. Academic Progress Report, 6/2013, 4 pgs.
H. Tuition Contract, 2012/13, 1 pg.
I. Affidavit of Payments, 10/10/13, 1 pg.
J. Proof-of-Payments, various dates, 8 pgs.
K. Return, 2012, 2 pgs.
L. Attendance Record, 10/16/13, 1 pg.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 5/15/12, 14 pgs.
2. Final Notice of Recommendation (FNR), 5/17/12, 1 pg.
3. Conference Agenda, 5/15/12, 5 pgs.
4. Observation, 5/2/12, 2 pgs.
5. Teacher Report, 5/15/12, 5 pgs.
6. Evaluation, 4/18/12, 4 pgs.
7. Psychoeducational Evaluation, 12/20/10, 12 pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 12/23/13, 1 pg.
II. Confirmation of Extension, 1/22/14, 1 pg.
III. Confirmation of Extension, 2/21/14, 1 pg.
IV. Confirmation of Extension, 3/22/14, 1 pg.
V. Confirmation of Extension, 4/15/14, 1 pg.
VI. Confirmation of Extension, 5/10/14, 1 pg.
VII. Confirmation of Extension, 6/12/14, 1 pg.
VIII. Confirmation of Extension, 7/14/14, 1 pg.
IX. Confirmation of Extension, 8/18/14, 1 pg.
X. Confirmation of Extension, 9/18/14, 1 pg.
XI. Confirmation of Extension, 10/20/14, 1 pg.
XII. Confirmation of Extension, 11/19/14, 1 pg.
XIII. Confirmation of Extension, 12/16/14, 1 pg.
XIV. Confirmation of Extension, 1/20/15, 1 pg.
XV. Confirmation of Extension, 2/19/15, 1 pg.
XVI. Confirmation of Extension, 3/20/15, 1 pg.
XVII. Confirmation of Extension, 4/19/15, 1 pg.
XVIII. Confirmation of Extension, 5/18/15, 1 pg.
XIX. Confirmation of Extension, 6/18/15, 1 pg.
XX. Confirmation of Extension, 7/18/15, 1 pg.
XXI. Confirmation of Extension, 8/14/15, 1 pg.
XXII. Confirmation of Extension, 9/16/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 4-6, 66-67, 152-153; Exs. IHO-I - IHO-XXII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[5] State regulations define services as "specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students." 8 NYCRR § 200.6(g). The "maximum number of students with disabilities receiving services in a class . . . shall not exceed ." 8 NYCRR § 200.6(g)(1). In addition, State regulations require that school personnel assigned to a classroom providing services shall "minimally include a special education teacher and a general education teacher." 8 NYCRR § 200.6(g)(2).
[6] For example, it is not speculative to conclude that an IEP recommending a , for a child with a , could not be implemented at a proposed school that was not seafood free. See D.C. ex rel. E.B. v. New Y ork City D ep't of Educ., 950 F.Supp.2d 494, 513 (S.D.N.Y.2013). Nor is it speculative to conclude that an IEP recommending -on- occupational therapy, outside of the classroom, could not be implemented at a school that provided only in-class occupational therapy in a group setting. See B.R . ex rel. K.O. v. New Y ork City Dep’t of Educ., 910 F. Supp. 2d 670, 676–79 (S.D.N.Y. 2012).