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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 10, 2014
July 24, 2014
Actual Record Closed Date: January 13, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2014
ESQ., Attorney — Student
Parents
Parents
District Representative, CSE — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2014
ESQ., Attorney — Student
Parents
Parents
Coordinator (via telephone) — Student
District Representative, CSE — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated October 31, 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 the 2013/14 school year (Ex. P-B).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on October 31, 2013. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on March 10, 2014 and July 24, 2014.[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 31, 2013 due process complaint, the student was ( ) years old and has been diagnosed with (“ ”). The student presents with deficits . She has
(Ex. SD-1 at 1). For the
2013/14 school year, the student attended the at (Exs. P-A, P-B, P-
D, P-E, P-G, P-K, 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 eligibility for special education and related services as a student with a is not in dispute in this hearing (Exs. SD-1 at 1, SD-2, P-B at 1, P-H).3 See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).
As part of a December 8, 2012 psychoeducational evaluation, the student was administered the (“ ”) in order to obtain her then-current . The student achieved a score range. The student achieved score range and a ( ) IQ score ( ) in the range (Exs.
SD-1 at 1, SD-6 at 1-2, 5).
The student was also administered the
”) in order to assess her current level of .
The student scored in the
The student’s score on
. The student’s
scores fell within the range.
The student’s score fell within the
range. (Exs. SD-1 at 1, SD-6 at 2-5).
At a meeting held on January 2, 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 her instruction in school on a ( ) month basis. The CSE also recommended that the student receive related services of:
3
or a or a NYCRR § 200.1(zz minutes per session; , time per week for ( )
minutes per session; , ( ) time per week for ( ) minutes per session; and , ( ) time per week for ) minutes per session (Ex. -1 at 6-7, 10-11).
In a Final Notice of Recommendation dated January 7, 2013 the DOE advised the parents that the student’s recommended program would be implemented at the in (Ex. SD-2).
In a letter dated March 12, 2013, the parents informed the CSE that after visiting the proposed program, they had determined that it was inappropriate to meet their daughter’s educational needs and would continue her placement at (Ex. P-I).
In a letter dated August 16, 2013, counsel for the student and the parents advised the CSE of the parents were rejecting its proposed program for the student and would unilaterally place the student at for the 2013/14 school year at public expense (Ex. P-A). On September 16, 2013, the parents signed a contract with for the student’s enrollment there for the 2013/14 school year (Ex. P-D). 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 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. was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 20-21, 186-195).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at for the 2013/14 school year. The DOE failed to develop an appropriate educational program for the student. 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
(R. 195-209; Ex. P-B).
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 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. 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 parents allege that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2013/14 school year (Ex. SD-1 at 2).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
I find that the CSE had adequate evaluative information of the student ’s functional, developmental and academic needs upon which to premise its program for the student for the 2013/14 school year (Ex. SD-1). See A pplication of a Student with a Disability , Appeal No. 12-017 (SRO February 22, 2012). At the January 2, 2013 meeting, the CSE possessed: a December 17, 2012 classroom observation; a December 18, 2012 psychoeducational evaluation; a December 27, 2012 teacher evaluation; and a December 28, 2012 Vocational-Teacher Assessment (Exs. SD-1, SD-3, SD-4, SD-
5, SD-6, SD-7). The student’s mother attended the January 2, 2013 CSE meeting as did Ms. and Ms. from . Ms. , Ms.
and the student’s mother all participated in the meeting’s discussion and gave input regarding the student’s (Exs. SD-1 at 13, SD-3).
Alternatively, while the parents assert that the CSE failed to secure a / evaluation prior to the January 2, 2013 meeting (Ex. P-B at 2), the IEP indicates that “as per her current , [the student]
. She has difficulty with
” (Ex. SD-1 at
1). There was no evidence entered into the hearing record to dispute this analysis of the student’s / needs.
C. Composition of January 2013 CSE
The parents assert that the January 2013 CSE was not duly constituted in that it lacked a / (Ex. P-B at 2).
An IEP must be prepared by a CSE having each of its required members. See, e.g., A pplication of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No.
99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; and an individual who can interpret the evaluations being reviewed by the CSE. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
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 did not violate any procedural requirements by not inviting the student's / provider to participate (Ex. SD-1 at 13). I also note that the parents were not precluded from inviting the student's / to attend and participate in the meeting. See 8 NYCRR § 200.3(a)(1)(ix).
D. IEP Annual Goals
The parents allege that the annual goals developed for the student were inappropriate, particularly in the area of / (Ex. P-B at 2).
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
I find that the CSE’s IEP for the student for the 2013/14 school year established annual educational goals which were reasonably related to her educational deficits. The
January 2, 2013 IEP included annual goals in
The IEP’s annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Ex. SD-1 at 3-6). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); R.B. v. New Y ork City Dep’t of Educ., 62 IDELR 55, 113 LRP 39966 (S.D.N.Y. Sept. 27, 2013), aff’d, 64 IDELR 126, 114 LRP 47226 (2d Cir. Oct. 29, 2014); M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 (S.D.N.Y. Sept. 29, 2008); W .S. v. Rye City Sch. Dist., 454 F. Supp.
2d 134, 146-147 (S.D.N.Y. 2006).
E. Transition Plan
The parents allege that the CSE failed to develop a plan so that the student could transition from “ ” (Ex.
P-B at 2).
The IDEA – to the extent appropriate for each individual student – an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34)(A); see also N.Y. Educ. Law § 4401(9); 34 C.F.R. §
300.43; 8 NYCRR § 200.1(fff). Transition services must be “based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests” and must include “instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.” See 20 U.S.C. §§
1401(34)(B)-(C); 8 NYCRR § 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. §
300.320(b); 8 NYCRR § 200.4(d)(2)(ix). It must also include transition services needed to assist the student in reaching those goals. See id. As recently noted by one district court, “the failure to prove a transition plan is a procedural flaw.” See M.Z. v. New Y ork City Dep’t of Educ., 2013 WL 1314992 at *6, *9 (S.D.N.Y. Mar. 21, 2013).
Based on the evidence entered into the hearing record, I find that the CSE’s transition plan for the student was appropriate and consistent with the student’s needs as reflected in the December 28, 2012 Level 1 Vocational-Teacher Assessment (Exs. SD-1 at 8, SD-7). See A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-140 at 14-17 (SRO May 2014); A pplication of the New Y ork City Dep’t of Educ., Appeal No. 08-080 at 11 (SRO Sept. 29, 2008).
Alternatively, to the extent that the parents assert that the January 2013 CSE failed to adequately plan for the student’s transition from to the (Ex. P-B at 2), I note that the IDEA does not require a “transition plan” as part of a student’s IEP when a student moves from one school to another. See A .D. v. New Y ork City Dep’t of Educ., 2013 WL 1155570, at *8 (S.D.N.Y. Mar. 19, 2013); F.L. v. New
Y ork City Dep’t of Educ., 2012 WL 4891748, at *9 (S.D.N.Y. Oct. 16, 2012), aff’d, 2014 WL 53264 (2d Cir. Jan. 8, 2014); A .L. v. New Y ork City Dep’t of Educ., 812 F. Supp. 2d 492, 505 (S.D.N.Y. 2011); E.Z-L. v. New Y ork City Dep’t of Educ., 763 F. Supp. 2d 584
(S.D.N.Y. 2011), aff’d sub nom., R.E., 694 F.3d 167, 195.
F. Substantive Appropriateness of Proposed Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203.
The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” M rs. B.
v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The evidence entered into the hearing record demonstrates that the January 2013
CSE’s recommendation for an program for the student in a was not appropriate and, on that basis, the DOE denied the student a FAPE for the 2013/14 school year (Ex. SD-1 at 6). Ms. , a school psychologist who evaluated the student and chaired the January 2013 CSE meeting, explained at the hearing that “an classroom has a mix of students with IEPs and students without IEPs; percent ( of the students in that class have IEPs with a maximum of ( ) students that have IEPs . . . the rest of the percent ( of the class is – are students with , without IEPs. And there are ( ) teachers present in the class; who is a teacher and who is a teacher” (R. 51). Ms.
stated that the CSE recommended an program for the student because “based on how [the student] scored on both the and the from an academic perspective this would be a profile of a student who would be able to have their needs met within an ” (R. 53). That analysis, however, omitted additional information before the committee that the student was significantly below grade level in and . The student’s teachers at estimated that the student was at a level in , primarily due to a weakness in , and was on a level in (R. 131-132; Exs. SD-1 at 10, SD-5). However, no provision was made in the IEP, either in the needs section or elsewhere, for instruction of the student in the classes which the student’s teachers at described as critical to the student’s academic success (R. 119-162;
Exs. SD-1 at 2, SD-5). Given the absence of any provision in the IEP for or instruction for the student, in a proposed class which could have as many as ( ) enrolled students, I find that the CSE’s recommended program was not reasonably calculated to provide the student with meaningful educational benefit.
G. Appropriateness of Recommended Placement
The parents allege that the was an inappropriate placement for the student. Specifically, the parents assert that the recommended placement would have been too large for the student (Exs. SD-2, P-B at 2).
Challenges to an assigned school site are generally relevant to whether the district properly implemented a student’s IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district’s offered program must be determined on basis of the IEP itself. See R.E. v. New Y ork City Dep’t of Educ., 694 F.3d 167, 186-188 (2d Cir. 2012). The Second Circuit has explained that the parents’ “[s]peculation that the school district would not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E., 694 F.3d at 195; see F.L. v.
New Y ork City Dep’t of Educ., 2012 WL 4891748, at *14-*16 (S.D.N.Y. Oct. 16, 2012); Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at *15 (W.D.N.Y. Sept. 26, 2012) (finding the parents’ pre-implementation arguments that the district would fail to adhere to the IEP were speculative and misplaced), adopted, 2012 WL 5473485
(W.D.N.Y. Nov. 9, 2012).
While several district courts have, since R.E. was decided, continued to wrestle with the difficult issue regarding challenges to the implementation of an IEP made before the student begins attending the school and taking services under the IEP, see D.C. v. New
Y ork City Dep’t of Educ., 2013 WL 1234864, at *11-*16 (S.D.N.Y. Mar. 26, 2013)
(holding that the district must establish that it can implement the student’s IEP at the assigned school at the time the parent is required to determine whether to accept the IEP or unilaterally place the student); B.R. v. New Y ork City Dep’t of Educ., 910 F. Supp.2d
670, 677-678 (S.D.N.Y. 2012) (same); E.A .M . v. New Y ork City Dep’t of Educ., 2012 WL 4571794, at *11 (S.D.N.Y. Sept. 29, 2012) (holding that parents may prospectively challenge the adequacy of a “placement classroom” when a child has not enrolled in the school because district are not permitted to assign a child to a public school that cannot satisfy the requirements of an IEP), the State Review Officer has found it necessary to depart from those cases, see A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-161 at 13 (SRO Nov. 20, 2013).
Since these prospective implementation cases were decided in the district courts, the Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, “[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child,” see P.K. v. New Y ork City Dep’t of Educ., (Region 4), 2013 WL 2158587, at *4 (2d Cir. May 21, 2013), and, even more clearly that
“‘[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,” not a retrospective assessment of how that plan would have been executed,” K.L. v.
New Y ork City Dep’t of Educ., 2013 WL 3814669, at *6 (2d Cir. July 24, 2013) (rejecting as improper the parents’ claims related to how the proposed IEP would have been implemented). Thus, the analysis of the adequacy of an IEP in accordance with R.E. is prospective in nature, but he analysis of the IEP’s implementation is retrospective.
Therefore, if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP. See R.E., 694 F.3d at 186-188; see also Grim, 346 F.3d 381-382 (holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined to be appropriate, but the parents chose not to avail themselves of the public school program).
As explained more recently, “[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of the proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented.” A .M . v. New Y ork City Dep’t of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013); see R.B. v. New Y ork City Dep’t of Educ., 2013 WL 5438605, at *17 (S.D.N.Y. Sept. 27, 2013); E.F. v. New Y ork City Dep’t of Educ., 2013 WL 4495676, at *26 (E.D.N.Y. Aug. 19, 2013); M .R. v. New Y ork City Dep’t of Educ., 2013 WL
4834856, at *5 (S.D.N.Y. Aug. 14, 2013) (finding that the argument that the assigned school would not have been able to implement the IEP is “entirely speculative”); see also
N.K. v. New Y ork City Dep’t of Educ., 2013 WL 4436528, at *9 (S.D.N.Y. Aug. 13,
2013) (citing R.E. and rejecting challenges to placement in a specific classroom because
“‘[t]he appropriate inquiry is into the nature of the program offered in the written plan.’”).
In this case, arguments that the was for the student or would have failed to implement the January 2013 IEP are speculative insofar as the parents did not accept the January 2013 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in , a private school of their choosing. Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at the .
H. Appropriateness of
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 her 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 parents’ 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 student's parent, I find that was an appropriate program for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 152; Exs. P-F, P-K, P-
L).
Ms. described the program as “
program here at , and it’s almost like a
” (R. 122; Ex. P-F). During the 2013/14 school year, there were ( )
enrolled students in the program among a total population of approximately ( ) students (R. 122). Ms. stated at the hearing that she observed the student’s teachers providing the student with , in a student-to-teacher ratio, to address her and (R. 126-140, 146-152).
I. 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 for the 2013/14 school year.
In letters dated March 12, 2013 and August 16, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at for the 2013/14 school year at public expense (Exs. P-B, P-I). 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 (Exs. SD-1, SD-3), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the costs of the student’s tuition to was unreasonable (Exs. P-D, P-E, P-M), 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 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 for the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement.
Dated: January 26, 2015
, 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. Notice of Rejection, 8/16/13, 4 pgs.
B. Due Process Complaint Notice/Impartial Hearing Request, 10/31/13, 5 pgs.
C. [Reserved]
D. Tuition Contract, - , 9/16/13, 1
pg.
E. Affidavit of Payment, - ,
1/9/14, 1 pg.
F. Program Description, - ,
2013/14, 1 pg.
G. Attendance Record, - , 1/9/14,
1 pg.
H. Final Notice of Recommendation (FNR) w/ note from parents, 1/7/13, 1 pg.
I. Letter to CSE from parent, 3/12/13, 1 pg.
J. Letter to CSE from w/ signed subpoena, 3/4/14, 4 pgs.
K. Report Card, - , 2/5/14, 1 pg.
L. Class Schedule, - , 2013/14, 1
pg.
M. Affidavit of Payment, - ,
4/30/14, 1 pg.
N. Attendance Record, - , 5/1/14,
1 pg.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 1/2/13, 13 pgs.
2. Final Notice of Recommendation (FNR), 1/7/13, 1 pg.
3. CSE Meeting Minutes, 1/2/13, 2 pgs.
4. Classroom Observation, 12/17/12, 2 pgs.
5. Teacher Evaluation, -
,12/27/12, 3 pgs.
6. Psychoeducational Evaluation, 12/18/12, 5 pgs.
7. Vocational - Teacher Assessment, 12/28/12, 1 pg.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 1/8/14, 1 pg.
II. Confirmation of Extension, 2/13/14, 1 pg.
III. Confirmation of Extension, 3/10/14, 1 pg.
IV. Confirmation of Extension, 3/31/14, 1 pg.
V. Confirmation of Extension, 5/10/14, 1 pg.
VI. Confirmation of Extension, 6/12/14, 1 pg.
VII. Confirmation of Extension, 7/14/14, 1 pg.
VIII. Confirmation of Extension, 8/14/14, 1 pg.
IX. Confirmation of Extension, 9/13/14, 1 pg.
X. Confirmation of Extension, 10/6/14, 1 pg.
XI. Confirmation of Extension, 11/13/14, 1 pg.
XII. Confirmation of Extension, 12/12/14, 1 pg.
XIII. Confirmation of Extension, 1/12/15, 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 were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 100, 108-109, 210; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO- VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[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.