NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number:
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: January 28, 2014
March 5, 2014
April 7, 2014
June 12, 2014
Actual Record Close Date: April 15, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2014
ESQ., Attorney — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2014
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2014
ESQ., Attorney — Student
Parents
Director, (via telephone) — Student
ESQ., Attorney — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2014
ESQ., Attorney — Student
Legal Intern — Student
Parents
(via telephone) — Student
Teacher (via telephone) — Student
ESQ., Attorney — 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 parent in a due process complaint notice dated June 21, 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 parent, and/or directly pay for, costs associated with the student’s unilateral private placement at the for the 2012/13 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 June 25, 2013. See 8 NYCRR § 200.5(j)(3)(i). In due process responses dated November 27, 2013 and December 26, 2013, the DOE denied each and every allegation contained in the due process complaint (Exs. SD-2, SD-
3). See 8 NYCRR §§ 200.5(i)(4), (5). A pre-hearing conference with the parties was held on December 27, 2013 to clarify the issues and set dates for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter was thereafter held on: January 28, 2014; March 5, 2014; April 7, 2014; and June 12, 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 June 21, 2013 due process complaint, the student was ) years old and diagnosed with - not otherwise specified (“ ”)
(Exs. P-A at 1, -4 at 3, -7 at 1). For the 2012/13 school year, the student attended the in (Exs. P-A at 3, P-B, P-C, P-D, P-F, P-G). The Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities (R. 196). See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. SD-2 at 1, SD-3, at 1, SD-4 at 1, SD-5 at 1, SD-10,
SD-13 at 1, P-A at 1, P-E at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
The student has attended the since the fall of 2010 (Ex. P-A at 2). In
October and November 2010, a and evaluation was done by .
It concluded that the student presented with a significant pragmatic .
deficits were marked by impairments in of
. The student used
for a variety of functions, yet mainly to express his (Ex. SD-7 at 1).
conducted in December 2010 and January 2011 was unsuccessful due to the student’s . His issues resulted in an
(Ex.
SD-7, P-A at 1-2).
On March 21, 2011, the CSE convened to develop an IEP for the student for the 2011/12 school year. The CSE recommended that the student receive the majority of his instruction in a in a specialized ( ) school on a ( ) month basis. The CSE also recommended that the student receive related services of: ; education; / , ( ) times per week for ( ) minutes per session; / , ( ) times per week for ( ) minutes per session; times per week for ( )
minutes per session; , ) times per week for ( )
minutes per session; , ( ) time per week for ( )
minutes per session; times per week for ( ) minutes per session, and a (Ex. SD-4 at 1-2, 4-5, 16, 18-19).
In a notice dated January 24, 2012, the CSE invited the parent to attend a meeting on February 8, 2012 (Ex. SD-8). In a notice dated April 26, 2012, the CSE invited the parent to attend a meeting on May 10, 2012 (Ex. SD-9).
On May 10, 2012, the CSE convened to develop an IEP for the student through May 8, 2013. The CSE recommended that the student receive the majority of his instruction in a in a specialized ( ) school on a month basis. The CSE also recommended that the student receive related services of: ; times per week for minutes per session; times per week for minutes per session; times per week for minutes per session; , times per week for minutes per session; , time per week for minutes per session; and
, times per week for minutes per session. All related services were to be carried out in (Exs. SD-5 at 10-11, 14-15, SD-13 at 1, 4, P-A at 2).
On May 17, 2012, the parent signed an enrollment agreement with the for the 2012/13 school year (Ex. P-G at 4).
In a Final Notice of Recommendation (“FNR”) dated June 14, 2012, the parent was informed that the student’s recommended program would be implemented at in (Ex. SD-10, P-E).
In letters dated June 15, 2012 and July 5, 2012, counsel for the student advised the CSE that the parent was rejecting its proposed program for the student and that the parent intended to enroll the student at the for the 2012/13 school year at public expense (Exs. P-D,
P-F). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year should be denied. The
CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award. (R. 46-49; Ex. IHO-I).
B. The Parent
The parent is entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at the during the 2012/13 school year. The DOE denied the student a free appropriate public education. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the (R.
171-172; 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. Mamaroneck 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. Carmel 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.
Brew ster 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.
Turning to the first prong of the B urlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parent asserts that the CSE failed to include in the student’s IEP (Exs. IHO-II at 17-18, P-A at 2).
State regulations require that an IEP indicate the extent to which will be provided to parents, when appropriate. See 8 NYCRR § 200.4(d)(2)(v)(b)(5). State regulations further provide for the provision of for the purpose of enabling parents of students with to perform appropriate follow-up intervention activities at .
See 8 NYCRR § 200.13(d). 5 Courts have held, however, that a failure to include on an IEP does not constitute a denial of a FAPE where a school district provided " " that satisfied the requirements of the State regulation. See R .E., 694 F.3d at 191; M .M. v. New Y ork City D ep't of Educ., 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008). The Second Circuit has explained that "because school districts are means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program. 8 NYCRR § 200.1(kk); see also 34 C.F.R. § 300.34(c)(8). required by [8 NYCRR] 200.13(d) to provide , they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service." R.E., 694 F.3d at 191; see M.W . v. New Y ork City D ep't of Educ., 725 F.3d 131, 141–42 (2d Cir. 2013). The Second Circuit further explained that
"[t]hough the failure to include in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement." R.E., 694 F.3d at 191.
In this case, it is undisputed that the student is educationally classified as a student with , that must be afforded to parents of students with , and that the May 2012 CSE did not recommend as a related service in the student’s IEP (Ex. SD-5). This violation alone, however, does not support a finding that the DOE failed to offer the student a FAPE.[6]
C. Methodology
While the parent asserts that the IEP failed to specify the teaching methodology through which the student’s annual educational goals would be taught (Exs. IHO-I at 13-16, P-A at 2), a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher (R. 132-133), see Rowley, 458 U.S. at 204; M .M . v. Sch. Bd. of M iami-Dade County, 437 F.3d 1085, 1102 (11th Cir. 2006); Lt. T.B. v. W arwick Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004) (“courts are ill-equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods”); Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 (7th Cir.
1988); F.L. & M .L. v. New Y ork City Dep’t. of Educ., 11–Civ–5131, 2012 WL 4891748, at *9 (S.D.N.Y. 2013) (“parents are not entitled to choose an educational methodology under the
IDEA”); A .S. v. New Y ork City Dep’t of Educ., 10-Civ-00009 (E.D.N.Y. May 26, 2011) (noting the “broad methodological latitude” conferred by the IDEA); L.K. v. Dep’t of Educ., 2011 WL
127063, at *11 (E.D.N.Y. Jan. 13, 2011).
D. 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 “
” “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.
Based on the evidence submitted into the hearing record, I find that the CSE’s proposed program for the student was not reasonably calculated to provide him with meaningful educational benefit. The student presented with “ challenges that resulted in him seeking quite a lot of through the day (R. 218),” or in other words, a “ ” (Ex. SD-6 at 10). The report on which the CSE relied detailed the types of interventions which were effective for him. At the time that the student’s May 2012 IEP was created, he was noted to “ ” in the classroom would “ ” (Ex. SD-6 at 10). “In the , [the student] will seek out on a variety of swings . . . [the student]
has been seeking both ” (Ex. SD-6 at 10). In addition to the specified goals, his stated in his report:
[The student] participates in a daily
.
While can help [the student] to maintain
, he can also become
(Ex. SD-6 at 10).
Along with the above documentation, the student’s was specifically discussed at the May 2012 meeting (R. 328), and the parent emphasized that the student was a seeking child, who “ ”
“
” (R. 328). When his use of a was mentioned at the meeting, the parent was told that there’s “
” (R. 328).
Despite the availability of this information to the CSE, the resulting IEP lacked an adequate program to address the student’s needs. For reasons which are unexplained by the evidence entered into the hearing record, and without any apparent consideration (Ex. SD-5 at
16), the May 2012 CSE removed its recommendation that the student receive a transitional to assist his transition from his private school environment to a public school setting and removed its recommendation for education (Ex. SD-4 at 17, SD-5 at 10-11). Although the May 2012 CSE noted that the student was “ ” (Ex. SD-5 at 2), it determined that he did not need a (Ex. SD-5 at 3).7 In the absence of such supports, the evidence contained in the hearing record demonstrates that the student needed the provision of a means a plan that is based on the results of a and, at a minimum, includes a description of the problem , global and specific hypotheses as to why the problem occurs and that include positive supports and services to address the . 8 NYCRR § 200.1(zz)(mmm). in order to properly address his difficulties.[8]
The parent explained at hearing the context of why a was important for the student, based on her own education as a and her knowledge of her son:
It's simply about knowing that movement is central to . It all goes together, and the way that kids on the sometimes process that information is through getting access to the spinning, to the back and forth, what have you. That's just the bottom line for [the student]. He's
(R. 329).
This analysis was echoed by Ms. , who testified that the “provided [the student] with a tremendous amount of opportunity to receive and a variety of ” and was additionally very motivating for him (R. 221). Because it worked so well, Ms. estimated that percent of her and the student’s sessions took place in a (R. 256). This was not true of all her students (R. 225-26).
Based upon her experience with the student, and the progress and improvement she had seen him make, she opined that he would not do well in a place that did not have a (R. 226-
27).
Ms. also explained in general terms the process of creating and executing a
A is a protocol where a student is carefully assessed by the to see what their needs are, and then almost a written recipe is provided to the classroom to give that student input at various times throughout the day in a prescribed order. So it's in , and then the teachers are trained to implement it in the classroom (R. 214; 234-235,
264).
The prescribed order of activities is important, as the order is different for different types of profiles, based on the of the (R. 262-264). The student’s during the 2012/13 school year consisted of first,
(R. 220).
Ms. , the head teacher in the student’s class during the 2012/13 school year, testified that his difficulties in was addressed through the use of his throughout the day as well as the use of available to him in the classroom and the (R. 274, 278-79). Additionally, she testified that
(R. 280), was very
different from providing for the student (R. 281-82).
E. Appropriateness of Proposed Placement
The parent alleges that the was inappropriate and would not have been able to meet the student’s educational needs (Ex. P-A, P-D).
Challenges to an assigned public 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, the argument that the DOE would have failed to implement the May 2012 IEP at the is speculative insofar as the parent did not accept the May 2012 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in the , a private school of her choosing (Exs. P-A, P-
D, P-F, P-G). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at at .
F. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2012/13 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank
G. v. B oard of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007).
Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See
Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115.
A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also W eaver v. Millbrook Cent. Sch. Dist., No. 09-CV-
692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Ms. , Ms. , Ms. , and the parent, I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (Exs. SD-6, P-B, P-H).
The specializes in educating students with
(R. 178). Teachers instruct students using the methodology, a research-based approach designed to address underlying the (R. 178-180, 271-
273). Classes at the are staffed at a ratio (R. 182).
This ratio provides students , which allows them to work on their (R. 182-183). The curriculum parallels
(R. 184-185). An individualized academic program is developed for each child, taking into account his or her
(R. 269).
All head teachers at the are required to either have a master’s degree in special education or to be enrolled in a master’s degree in special education; assistant teachers all have bachelor’s degrees and about half either have master’s or are enrolled in master’s programs
(R. 183). All staff undergo professional development before school starts as well as weekly throughout the year (R. 183-184). All staff work as a trans-disciplinary team to teach each child
(R. 188).
For the 2012/13 school year, the student was placed in a class with a staffing ratio of students to head teacher to assistant teachers (R. 189-90). He presented as being in the middle of the class functionally – “ ” (R. 190, 270). The students’ abilities ranged from “ ” “ ” while the student here had , but was not always using it
(R. 190). In terms of his profile, the student also
(R. 190-
191). The class composition provided the kind of the student “ ” (R. 191). The student’s educational program was for him (R. 275).
The student was provided with all his related services: , / , and (R. 282; Ex. P-B). In addition, the student was provided with a
(R. 214, 217, 219, 274). His worked closely with the staff to give teachers “ ” (R. 216). He was
(R. 221, 226-227).
The also has a , where parents are assigned a social worker who works with them directly as a liaison between the family and the school to ensure the child is moving ahead (R. 186). are provided, and parent support and educations groups are offered (R. 185). A week training in is also availab to parents (R. 186).
The evidence entered into the hearing record reflects that the student made meaningful progress at the during the 2012/13 school year. His level of confidence dramatically increased, which helped him make gains in all areas (R. 295). He improved in
(R. 193). He became
(R. 336). He became
(R. 295). He also
(R. 289, 295),
(R. 232). He displayed gains in
(R. 336). He became
(R. 232).
G. 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 theIDEA. 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. Clarkstown 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 2012/13 school year. In letters dated June 15, 2012 and July 5, 2012, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the at public expense for the 2012/13 school year (Exs. P-D, P-F). 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-5, SD-13), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the was unreasonable (Ex. P-G), see Carter, 510 U.S. at 16.
Alternatively, while the DOE asserts that the parent violated the payment schedule called for in the enrollment contract with the for the 2012/13 school year (Exs. IHO-I at
11-13, 29-31, P-G), the parent’s financial need to renegotiate the timing of her payments to the private school is an insufficient basis on which to find that the enrollment contract was a sham and that the parent was not obligated to pay the tuition in accordance with the contract (R. 354-
356; Ex. P-K), cf. A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-004 at 14-15 (SRO March 19, 2012).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2012/13 school year is GRANTED; and within thirty (30)
days of its receipt of this Order, the DOE shall reimburse the parent for all costs associated with the student’s unilateral private placement at the for the 2012/13 school year, and shall directly pay the private school for any outstanding costs associated with said placement.
Dated: April 30, 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 a State Review Officer (“SRO”) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties’ petition for review shall be personally served upon the opposing party 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 four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b)).
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/filing.html.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/21/13, 4 pgs.
B. Progress Report, 6/2013, 10 pgs.
C. Class Schedule, 2012/13, 1 pg.
D. Letter to (CSE) from , 7/5/12, 1 pg.
E. Final Notice of Recommendation (FNR), 6/14/12, 2 pgs.
F. Letter to (CSE) from , 6/15/12, 1 pg.
G. Enrollment Contract, 2012/13, 6 pgs.
H. Interdisciplinary Report, 12/2012, 15 pgs.
I. [Reserved]
J. [Reserved]
K. 1040 U.S. Individual Income Tax Form 2012, 2/4/13, 3 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Due Process Response, 11/27/13, 4 pgs.
3. Due Process Response, 12/26/13, 5 pgs.
4. Individualized Education Program (IEP), 3/21/11, 19 pgs.
5. Individualized Education Program (IEP), 5/10/12, 17 pgs.
6. Interdisciplinary Report of Progress Update, 12/2011, 14 pgs.
7. Evaluation, 1/5/11, 5 pgs.
8. Notice of IEP Meeting, 1/24/12, 2 pgs.
9. Notice of IEP Meeting, 4/26/12, 2 pgs.
10. Final Notice of Recommendation, 6/14/12, 1 pg.
11. [Reserved]
12. [Reserved]
13. IEP Meeting Minutes, 5/10/12, 4 pgs.
IMPARTIAL HEARING OFFICER
I. DOE’s Post-Hearing Closing Brief, 8/12/14, 31 pgs.
II. Parent’s Closing Memorandum of Law, 8/12/14, 25 pgs.
III. Confirmation of Extension, 7/23/13, 1 pg.
IV. Confirmation of Extension, 9/13/13, 1 pg.
V. Confirmation of Extension, 10/16/13, 1 pg.
VI. Confirmation of Extension, 10/25/13, 1 pg.
VII. Confirmation of Extension, 12/16/13, 1 pg.
VIII. Confirmation of Extension, 12/27/13, 1 pg.
IX. Confirmation of Extension, 1/28/14, 1 pg.
X. Confirmation of Extension, 3/17/14, 1 pg.
XI. Confirmation of Extension, 3/31/14, 1 pg.
XII. Confirmation of Extension, 5/10/14, 1 pg.
XIII. Confirmation of Extension, 6/15/14, 1 pg.
XIV. Confirmation of Extension, 7/14/14, 1 pg.
XV. Confirmation of Extension, 8/14/14, 1 pg.
XVI. Confirmation of Extension, 9/13/14, 1 pg.
XVII. Confirmation of Extension, 10/6/14, 1 pg. XVIII. Confirmation of Extension, 11/13/14, 1 pg.
XIX. Confirmation of Extension, 12/12/14, 1 pg.
XX. Confirmation of Extension, 1/12/15, 1 pg.
XXI. Confirmation of Extension, 2/11/15, 1 pg.
XXII. Confirmation of Extension, 3/13/15, 1 pg. XXIII. Confirmation of Extension, 4/9/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses, in order to allow the parties adequate time to prepare 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 parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 8- 10, 52-53, 200-201, 377-379; Exs. IHO-III - IHO-XXIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] means a developmental disability significantly affecting and . Other characteristics often associated with are engagements in , . The term does not apply if a student’s educational performance is adversely affected primarily because the student has an as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of after age 3 could be diagnosed as having if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1
[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.
[6] While Dr. stated that the CSE need not specify in the student’s IEP because the regulations provide for the service and because the service is incorporated into the recommended program (R. 128-131, 165-166), I note that the DOE was recently cautioned by the SRO that it cannot continue to disregard its legal obligation to include in a student’s IEP, see A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 15 n.10 (SRO Feb. 25, 2014).
[8] Cf. A pplication of the New Y ork City D ep’t of Educ., Appeal No. 13-091 at 8-9 (SRO Dec. 8, 2014) (tuition reimbursement claim for denied where DOE recommended in a specialized ( ) school with for student with ); A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-041 at 13-15 (SRO May 3, 2012) (tuition reimbursement claim for denied where DOE developed / and recommended in a specialized ( ) school with for student with ); A pplication of the New Y ork City D ep’t of Educ., Appeal No. 12-005 at 12-14 (SRO March 5, 2012) (tuition reimbursement claim for denied where DOE developed / and recommended in a specialized ( ) school with for student with ), aff’d, v. New Y ork City D ep’t of Educ., 62 IDELR 55, 113 LRP 39966 ( .N.Y. Sept. 27, 2013), aff’d, 64 IDELR 126, 114 LRP 47226 (2d Cir. Oct. 29, 2014); but see A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-124 at 6-7 (SRO Dec. 30, 2014) (tuition reimbursement claim for granted where DOE developed / and recommended in a specialized ( ) school with for student with and needs).