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: November 19, 2014
Actual Record Closed Date: March 12, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2014
ESQ., Attorney — Student
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 originally requested by the advocate for the student and the parents in a due process complaint notice dated October 30, 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 special education program 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 November 27, 2013, following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on May 16, 2014 to clarify the hearing issues and set dates for the hearing (R. 3-6). See 8 NYCRR § 200.5(j)(3)(xi). A hearing in this matter was thereafter held on: November 19, 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 30, 2013 due process complaint, the student was
) years old and has been diagnosed
(Exs. SD-3 at 3, P-B at 1). For the 2013/14 school year, the student attended the at (R. 70; Exs. SD-1 at 2, P-C, P-E, P-F, P-G, P-H). The Commissioner of Education has not approved 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 a is not in dispute in this hearing (Exs. SD-1, SD-3 at 1, P-B). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).3
At a meeting held on March 26, 2010, the CSE convened to develop an IEP for the student through March 26, 2011. The CSE recommended that the student receive
(“ ”), period per , to supplement
her instruction at a nonpublic school. The CSE also recommended that the student receive related services of , ) times per week for ( ) minutes per session, and / , ( ) times per week for ( ) minutes per session (Ex. SD-3 at 1-2, 13, 15).
On August 15, 2012, the DOE issued a P-4 Form authorizing the student to receive , times per week (Ex. SD-2 at 2). On August 15, 2013, the DOE issued another P-4 Form authorizing the student to receive , ( ) times per week (Ex. SD-2 at 1).
In a letter dated August 22, 2013, the parents rejected the CSE’s recommendation of for the student as “deficient and outdated.” The parents informed the CSE of their intent to unilaterally place the student at for the 2013/14 school year at public expense and requested transportation services to the private school (Ex. SD-1). On
September 16, 2013, the parents signed an enrollment agreement with for the 2013/14 school year (Ex. P-E).
This hearing ensued.
IV. POSITIONS OF THE PARTIES
3
NYCRR § 200.1(zz)
A. The DOE
The parents claim for tuition reimbursement should be denied. As the student was parentally placed at during the 2013/14 school year, the DOE was not required to offer the student a public school placement or a free appropriate public education (R.
23-27).
B. The Parents
The parents are entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at during the 2013/14 school year. The DOE denied the student a free appropriate public education, by failing to develop an IEP for the student for the 2013/14 school year. 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. 27-
32; Exs. SD-1, 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. Dual Enrollment - 2013/14 School Year
I now turn to the DOE’s argument that the student was parentally placed at for the 2013/14 school year and that it was therefore not required to offer the student a public school placement or a FAPE for that academic year. Specifically, the DOE alleges that at a meeting held on March 26, 2010 the CSE explained to the parents the implication of the student being parentally placed, and that the parents did not request a public school program for the student until August 22, 2013. The DOE further alleges, in consideration of the foregoing, that it met its obligations by preparing an appropriate IESP, and subsequently issuing annual P-4 Forms, to provide the student with special education services on an equitable basis. Upon a thorough review of the hearing record, however, I find that the evidence indicates that the student was not parentally placed for the 2013/14 school year and that the DOE was obligated to offer the student a FAPE for that academic year.
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). However, the IDEA confers no individual entitlement to special education or related services to students who are voluntarily enrolled by their parents in nonpublic schools. See 20 U.S.C. § 1412(a)(10).
Although boards of education are required by the IDEA to provide some special education services to some students enrolled privately by their parents in nonpublic schools, no such students are individually entitled under the IDEA to any or all of the services they would receive if they were enrolled in a public school. See 20 U.S.C. §
1412(a)(10), (a)(3)(A); 34 C.F.R. §§ 300.137(a), 138(a)(2); see also Analysis of Comments & Changes to 34 C.F.R. Parts 300 & 301, 71 Fed. Reg. 156 at 46,593-46,597
(Aug. 14, 2006).
In 2007, New York State amended Education Law Section 3602-c to comply with the reauthorization of 20 U.S.C. § 1412(a)(10) (“Children in Public Schools”) and its implementing regulations, 34 C.F.R. § 300.130 - 300.147. See N.Y. Educ. Law § 3602-c as amended by Ch. 378 of the Laws of 2007.[5] Education Law Section 3602-c - commonly referred to as the dual enrollment statute - requires parents who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See N.Y. Educ. Law § 3602-c(2). The district of location’s CSE must review the request for services and develop an IESP based upon the student’s individual needs and “in the same manner and with the same contents” as an IEP. See N.Y. Educ. Law § 3602-c(2)(b)(1). In addition, the district of location’s CSE “shall assure that special education program and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” See id.
The following question and answer in the VESID (now Office of Special Education) guidance memorandum is relevant to the issue on appeal:
12. Must the district of residence develop an IEP for a student who is parentally placed and conduct annual reviews of this IEP?
U[nited] S[tates] E[ducation] D[epartment] has provided guidance that states: "If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private . . . school located in another LEA, the LEA where the child resides need not make FAPE available to the child." Therefore, if the parents make clear their intention to keep their child enrolled in the nonpublic . . . school, the district of residence need not develop or annually review an IEP for the student.
See James P. DeLorenzo, Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA ] 2004 and New Y ork State Education Law Section 3602-c at 12 (VESID
September 2007).[6]
Upon review of the hearing record, there is no evidence that the parents attempted to dually enroll the student pursuant to Education Law Section 3602-c, or that the parents were requesting special education services on an equitable basis from the DOE for the 2013/14 school year. With respect to whether the CSE was required to develop an IEP and offer a publicly funded placement rather than an IESP, noticeably absent from the evidence is a written request, made by the parents prior to June 1, 2013, and the parties do not assert that any exceptions to the deadline are applicable to this case. See N.Y. Educ.
Law § 3602-c (2). The form submitted by the DOE, dated August 15, 2013, was a blank, sample form that does not suffice to establish that the student was eligible for services pursuant to the dual enrollment statute (Ex. SD-2 at 1). In a letter to the CSE dated August 22, 2013, the parents clearly objected to “the deficient and outdated IEP” created on March 26, 2010 (Exs. SD-1 at 1, SD-3). If the parents had parentally placed (under State law) or voluntarily enrolled (under federal law) the student in a nonpublic school, there should be at least some minimal evidence of this fact maintained within the student’s records, if only to assure compliance with the compulsory education law. See
N.Y. Educ. Law § 3205(1)(a).[7] The DOE may not presume that a student is a dually enrolled student in the absence of a parent’s written request. Consequently, the documentary evidence does support the DOE’s argument that the student was eligible for services pursuant to an IESP under the dual enrollment statute. The DOE, therefore, retained the obligation to develop an IEP for the student for the 2013/14 school year and offer the student a publically funded placement, and I find that the DOE’s failure to develop an IEP consistent with its responsibilities denied the student a FAPE. See
A pplication of the New Y ork City Dep’t of Educ., Appeal No. 11-130 at 11-14 (SRO Nov.
15, 2011).
C. 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 father, 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. 36, 74-76, 80-83; Exs.
P-C, P-D, P-H).
Ms. testified under oath at the hearing that she was the coordinator of the program during the 2013/14 school year (R. 67). During that academic year, the student was instructed ) students, , and ) teachers (R. 70). Ms. stated at the hearing that developed an IEP for the student (R. 72; Ex. P-C). To assist the student with
(R. 69-74). The student was also provided with related services of and / at (R.
69-70, 80-81).
D. Relevant Equities
The final criterion for a reimbursement award is that the parents' 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); Carmel 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); Werner 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 a letter dated August 22, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at at public expense for the 2013/14 school year (Ex. SD-1). 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 (Ex. SD-3), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to was unreasonable (R. 38; Exs. P-E, P-F), 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: March 20, 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 ON NOVEMBER 19, 2014
PARENTS
A. [Reserved]
B. Due Process Complaint Notice/Impartial Hearing Request, 10/30/13, 1 pg.
C. Individualized Education Program (IEP), 2013/14, 7 pgs.
D. Program Description, 2013/14, 1 pg.
E. Tuition Contract, 8/15/13, 1 pg.
F. Affidavit of Payment, 5/28/14, 1 pg.
G. Attendance Record, 5/29/14, 1 pg.
H. Class Schedule, 2013/14, 1 pg.
I. Tax Return, 10/1/13, 2 pgs.
DEPARTMENT OF EDUCATION
1. Letter to CSE from , 8/22/13, 2 pgs.
2. P-4 Form, 8/15/13, 2 pgs.
3. Individualized Education Program (IEP), 3/26/10, 17 pgs.
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 1/10/14, 1 pg.
II. Confirmation of Extension, 2/4/14, 1 pg.
III. Confirmation of Extension, 3/12/14, 1 pg.
IV. Confirmation of Extension, 3/31/14, 1 pg.
V. Confirmation of Extension, 4/24/14, 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, 9/8/14, 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.
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 allow the parties adequate time to present their available witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-I - IHO- XV). 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.
[5] In September 2007, the Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”) published a guidance memorandum - “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c” - to “inform school districts of their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary schools by their parents.” Available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. VESID has since been reorganized and renamed, and is now referred to as the Office of Special Education.
[6] See also M aine Sch. Admin. Dist. #40, 108 LRP 40513 (ME SEA Oct. 23, 2007) (“If a determination is made by the LEA [local educational agency] where the private school is located that a child needs special education and related services, the LEA where the child resides is responsible for making FAPE available to the child. If the parent makes clear his or her intention to keep the child enrolled in the private [school] located in another LEA, the LEA where the child resides need not make FAPE available to the child.”).
[7] The New York State Education Law requires that “[i]n each school district of the state, each minor from six to sixteen years of age shall attend upon full time instruction.” See N.Y. Educ. Law § 3205(1)(a). Although the DOE asserts that it believed the student was parentally placed at , there is no evidence in the hearing record indicating that the DOE made any attempts to contact the parents prior to the start of the 2013/14 to ascertain whether the student was enrolled in school consistent with New York State compulsory education law.