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: May 27, 2014
June 3, 2014
Actual Record Closed Date: January 21, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2014
ESQ., Attorney — Student
Parents
Parents
Teacher, (via telephone) — Student
Principal, (via telephone) — Student
Psychologist (via telephone) — Student
District Representative, CSE — DOE
School Psychologist (via telephone) — DOE
Principal, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2014
ESQ., Attorney — Student
Parents
Teacher, (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 advocates for the student and the parents in a due process complaint notice dated October 25, 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 , including its , for the 2013/14 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on November 7, 2013. See 8 NYCRR § 200.5(j)(3)(i). At a hearing held on November 22, 2013, the parents moved for an interim order on pendency (R. 11; Exs. IHO-I at 3, P-A at 5). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parents’ motion (R. 13; Ex. IHO-I at 3). In an Interim Order on Pendency dated January 21, 2014, I directed that the student continue to attend the , including its , at public expense, effective November 7, 2013, until such time as the due process proceedings in this matter were concluded (Ex. IHO-I at 7). Hearings in this matter were thereafter held on: May 27, 2014 and June 3, 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 25, 2013 due process complaint, the student was ( ) years old and has been diagnosed with and a (Exs. IHO-I at 5, P-A at 2, P-B at 5, P-E at 2, 13). For the 2013/14 school year, the student attended the grade at the (Exs. IHO-I at 5, P-A at 1, P-H). The Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities (Exs. IHO-
I at 5, P-B at 5). See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with is not in dispute in this hearing (R. 44-45; Exs. IHO-I at 5, SD-1 at 1, SD-5, P-A at 2). See 34
C.F.R. § 300.8(c)(10);[8] NYCRR § 200.1(zz .3
The student began attending the (“ ”) at age , and exhibited by age . The student’s classes had about ( ) students. He remained at for several years, with special education support from the DOE for and for beginning at age . Beginning in grade, he also received support from the as part of his curriculum (R. 129-130).
The student was not successful at , despite having supports from the DOE, , and . The student had difficult and grade years (the 2010/11 and 2011/12 school years) marked by
(R. 131-132).
During an April 8, 2011 evaluation, the student was administered the - (“ to formally assess his . The student demonstrated
He achieved a
The student’s
Those difficulties would
The student also demonstrated Difficulties
in that area would impact his (Ex. -3 at 4-5).
On an April 2012 private assessment conducted by , Ph.D., the student’s was measured using the
- (“ ”). The student’s
performance on the was variable with
(Ex. P-E at 3-5).
The student’s was measured using the -
- (“ The student’s scores on the indicated
The student’s skills were a
(Ex. P-E at 6-7).
The student was also administered the -
(“ ") to assess his and comprehension skills. On the , the student’s
Those scores were consistent with his scores on the (Ex. P-E at 7).
The student’s skills were also measured using the . On the , the student enjoyed
On the other hand, as became
more
The student’s performance on the demonstrated that when given
However, when he relied on more
(Ex. P-E at 8).
With respect to placement, Dr. recommended that:
[The student] be in an educational environment that offers with respect to his and while also offering
(Ex. P-E at 13).
The student began attending the in September 2012 for
(R. 133-134). At a meeting held on December 21, 2012, the CSE developed an IEP for the student. The CSE recommended that the student receive the majority of his instruction in a setting supported by
(“ ”) in
. This program was projected to commence on January 16, 2013 and be reviewed by December 19, 2013 (Ex. SD-1 at 1, 9, 14).
On February 20, 2013, the parents signed an enrollment contract with the for the 2013/14 school year. The parents also signed a contract for the student’s enrollment in ’s for the 2013/14 school year (Ex. PH).
In a letter dated March 23, 2013, the student’s mother advised the CSE that they were rejecting the proposed program because, among other things, the program did not provide the services that the student required to learn (Ex. P-D).
In a letter dated May 13, 2013, the parents requested a CSE meeting to develop an IEP for the student for the 2013/14 school year. The parents advised the CSE that they had signed a contract for the student’s enrollment at the for the 2013/14 school year, and that absent the development of an appropriate program for the student, they intended to unilaterally place him at at public expense (Ex. P-G).
In a Final Notice of Recommendation (“FNR”) dated June 19, 2013, the DOE advised the parents that the student’s recommended program would be implemented at the ( in (Ex. SD-5).
In a letter dated August 20, 2013, the parents confirmed their receipt of the June 19, 2013 FNR and advised the CSE, that after visiting a second time, they were rejecting its recommended program for the student. The parents also advised the CSE of their intent unilaterally place the student at the during the 2013/14 school year at public expense (Ex. P-F). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2013/14 school year should be denied. The CSE’s program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 38-42; Ex. IHO-II).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at the for the 2013/14 school year. The CSE failed to develop an appropriate educational program for the student. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the (Exs. R. 42-44; Exs. IHO-
II, 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 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);
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. Res Judicata/Collateral Estoppel
It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity.
See K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012); S chreiber v. East Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-555
(S.D.N.Y. 2010); Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19. 2006).
The doctrine of res judicata "precludes parties from litigating issues 'that were or could have been raised' in a prior proceeding." See Perez v. Danbury Hosp., 347 F.3d
419, 426 (2d Cir.2003); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir. 1985); Grenon, 2006 WL 3751450, at *6.
The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again.
In re Hunter, 4 N.Y.3d 260, 269 (2005).
"[P]rinciples of res judicata require that 'once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.'" Chen
v. Fischer, 6 N.Y.3d 94, 100 (2005) (quoting O'B rien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981)); In re Hunter, 4 N.Y.3d at 269. Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same plaintiff or someone in privity with the plaintiff; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. See Grenon, 2006 WL 3751450, at *6
The related doctrine of collateral estoppel precludes parties from litigating "a legal or factual issue already decided in an earlier proceeding." See Perez , 347 F.3d at 426;
Grenon, 2006 WL 3751450, at *6. To prove collateral estoppel, a party must show that:
(1) the identical issue was raised in a previous proceeding; (2) the issue was 'actually litigated and decided' in the previous proceeding; (3) the party had a 'full and fair opportunity' to litigate the issue; and (4) the resolution of the issue was 'necessary to support a valid and final judgment on the merits.
See Grenon, 2006 WL 3751450, at *6 (quoting Boguslavsky v. K aplan, 159 F.3d 715, 720 (2d Cir.1998))
I find that the twin doctrines of res judicata and collateral estoppel bar relitigation of the issue of whether the December 21, 2012 IEP was appropriate for the student. The issue regarding the appropriateness of the December 21, 2012 IEP was already litigated and decided in a prior impartial hearing (Case No. 141634). In the prior proceeding concerning the 2012/13 school year, the DOE conceded that it failed to offer the student a FAPE. Based on that concession, it was determined that the DOE denied the student a FAPE (Ex. P-B at 8, 11). Neither party appealed that determination to the State Review Officer and the time to do so has now expired (R. 14; Exs. P-A at 5, P-B). See 8 NYCRR §§ 200.5(k)(1); 279.2. Although the parents requested that the CSE reconvene and develop a new IEP for the student (Ex. P-G), the DOE acknowledged that no meeting was held after December 2012 (R. 39). Accordingly, the DOE is precluded from relitigating the issue of the appropriateness of the December 21, 2012 IEP for the student. See
A pplication of a Student with a Disability , Appeal No. 12-017 at 7-9 (SRO Feb. 22,
2012).
C. Substantive Appropriateness of Proposed Program
Should it be determined later on appeal that the DOE is not foreclosed from asserting the merits of the December 21, 2012 IEP, I will analyze validity of that document now. 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 December 2012 CSE’s recommendation for services 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 9).
In his April 2012 evaluation, Dr. recommended . Dr. stated that the student needed
He also stated that the student needed
(Ex. P-E
at 13). During the hearing, Dr. testified that the student
(R. 169-
170).
In a June 7, 2012 letter, Ms. stated that the student required an academic setting that employed a -based curriculum in order to make academic progress. / services were also recommended to be integrated into the academic setting so that the student could apply what he learned within a relevant academic activity (Ex. SD-4).
The December 2012 CSE recommended that the student received the majority of his instruction in a setting in a on a ( ) month basis with the support of times per week (Ex. SD-1 at 9). Ms.
, the school psychologist at the meeting, testified that the CSE recommended a program for the student because he was . He [was] able to do a curriculum” (R. 66-67). That analysis, however, failed to recognized that the student’s then-recent experience at , in an educational environment like the one recommended in the IEP, left him struggling
(R. 129-132, 171-172). The recommended services were also inconsistent with Ms. ’s recommendation and offered the student insufficient support to follow the curriculum in a classroom (R. 172; Ex. SD-4).
Lastly, based on his prior experience as a teacher in a DOE operated
, Mr. credibly testified that the student would not likely have been successful in a classroom without to ’s (R. 202).
D. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2013/14 school year, I turn to the appropriateness of the parents’ private program.
With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. B oard of Educ., 459 F.3d 356, 363 (2d Cir.
2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65.
When determining whether the 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 Mr. , Mr. , Ms. and the student’s parent, I find that the , including its , was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R.
192,194-197, 218, 220, 225).
Mr. testified under oath at the hearing that the as an accredited, independent school for students in grades , offering an experience (R. 118-119). The school had approximately enrolled students during the 2013/14 academic year who were functionally grouped by
(R. 118-119). Approximately - ( ) of the enrolled students this past academic year had (R. 119-120). To address the needs of the developed its . students are instructed by a New York State certified special education teacher. The consists of:
teachers also to and classes to provide . Mr.
affirmed that there is and
(R. 120-121). Students and parents also have access to , an
(R. 121-123). Program
(R. 123-124).
Mr. testified under oath at the hearing that he was the student’s teacher this past academic year (2013/14). Mr. stated that there were ( ) total students in the class, all of whom had similar academic needs and approximately were in the (R. 188-189). To address the student’s , Mr. used
(R. 189-192). To help the student with his executive , Mr.
used and coordinated his instruction with the student’s teacher,
(R. 189, 193-194). To assist the student understand
(R. 189, 195-196).
Ms. testified at the hearing that she is dually certified by New York State in special education and education and served as the student’s teacher during the 2013/14 school year (R. 214). Ms. stated that she met with the student , in a of ( ) students. Ms. also worked y with the student per week, for ( ) minutes per session (R. 215). To help the student with assignments, Ms. used (R. 216, 220-221). To address the student’s , Ms.
(R. 216, 218). Lastly, to assist the student with
(R. 216, 219-220).
E. 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); Carm el Cent. Sch. Dist. v. V .P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y.
2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); W erner v.
Clarkstow n Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense. ” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch.
Dist. v. A m y N ., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See
Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V . v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2013/14 school year. In letters dated May 13, 2013 and August 20, 2013, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2013/14 school year (Exs. P-F, P-G). 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-1), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the was unreasonable (Exs. P-H, P-I), see Carter, 510 U.S. at
16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2013/14 school year, including the cost of its , is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs associated with the student’s unilateral private placement at the for the 2013/14 school year, including the cost of its , and shall directly pay the private school for any outstanding costs associated with said placement.
Dated: February 4, 2014
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 HEARING RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 10/25/13, 7 pgs.
B. Findings of Fact & Decision, Impartial Hearing Officer , 5/31/12,
18 pgs.
C. [Reserved]
D. Letter to CSE from parents, 3/23/13, 4 pgs.
E. Testing Report, 4/2012, 14 pgs.
F. Letter to CSE from parents, 8/20/13, 2 pgs.
G. Letter to CSE from parents, 5/13/13, 1 pg.
H. Enrollment Contract, , 2013/14, 4 pgs.
I. Proof-of-Payment, 2/21/13, 1 pg.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 12/21/12, 16 pgs.
2. [Reserved]
3. / Evaluation, 4/8/11, 5 pgs.
4. Letter from (S/L), 6/7/12, 1 pg.
5. Final Notice of Recommendation (FNR), 6/19/13, 1 pg.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 1/21/14, 8 pgs.
II. DOE’s Closing Statement, undated, 21 pgs.
III. Parents’ Closing Brief, 7/11/14, 24 pgs.
IV. Confirmation of Extension, 1/21/14, 1 pg.
V. Confirmation of Extension, 2/20/14, 1 pg.
VI. Confirmation of Extension, 3/22/14, 1 pg.
VII. Confirmation of Extension, 4/15/14, 1 pg.
VIII. Confirmation of Extension, 5/10/14, 1 pg.
IX. Confirmation of Extension, 6/12/14, 1 pg.
X. Confirmation of Extension, 7/14/14, 1 pg.
XI. Confirmation of Extension, 8/18/14, 1 pg.
XII. Confirmation of Extension, 9/18/14, 1 pg.
XIII. Confirmation of Extension, 10/20/14, 1 pg.
XIV. Confirmation of Extension, 11/19/14, 1 pg.
XV. Confirmation of Extension, 12/16/14, 1 pg.
XVI. Confirmation of Extension, 1/20/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses, in order to allow the parties adequate time to submit their post-hearing briefs, and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the 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. 18-19, 239-241; Exs. IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO- XII, IHO-XIII, IHO-XIV, IHO-XV, IHO-XVI ). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[8] NYCRR § 200.1(zz)
[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.
[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