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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 1, 2014
September 17, 2014
September 23, 2014
October 28, 2014
February 3, 2015
February 4, 2015
February 10, 2015
Actual Record Closed Date: April 13, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17,
2014
Attorney — Student
Attorney — Student
Parents
DOE Representative — DOE
CSE, School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23,
2014
Attorney — Student
Committee on Special Education, District Representative — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2014
Attorney — Student
District Representative — DOE
IEP Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2015
ESQ., Attorney, — Student
Program Director, (Via Telephone) — Student
District Representative, Committee on Special Education — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2015
Attorney — Student
Executive Director of (Via Telephone) — Student
Educational Coordinator of (Via Telephone) — Student
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10,
2015
Attorney — Student
Parents
Educational Coordinator (Via Telephone) — Student
CSE Representative — DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as “the District,” the parents as “the Parents” and the student will be referred to as the Student. This is a reimbursement case relating too the 2013-2014 school year. The hearing on this matter took place on, September 17, 2014, September 23, 2014, October 28, 2014, February 3, 2015, February 4, 2015 and February 10, 2015. I issued a Pendency Order on April 15, 2014 for the Student’s pendency placement to be the continuation of his last agreed upon placement, that he is currently attending. Pendency began on January 27, 2014 and continues until the resolution of the case.
Parents’ Position
The Parents allege that the District failed to provide the Student with a free appropriate public education (FAPE) during the 2013-2014 school year. The Parents argue that the Committee on Special Education (“CSE”) team was invalidly constituted (Ex. A-1). The CSE failed to evaluate the Student in all areas of suspected disability prior to the May 6, 2013 Individualized Education Program (IEP) meeting. (Id. at 2) Thus, the CSE had an insufficient understanding of the Student’s and needs and an insufficient basis upon which to base its recommendations. (Id.) The CSE failed to discuss or consider placement of the Student in the least restrictive environment.
(Id. at 3) A f ortiori they did not consider transition support services to a setting. (Id.)
The Parents argue that the May 6, 2013 IEP is not reasonably calculated to provide meaningful support. (Id. at 4) The IEP’s alleged deficiencies are attributable to the lack of objectively measureable goals by which the Student’s progress could be measured throughout the school year. (Id.) The Parents allege that the IEP could not be implemented at the recommended placement. (Id. at 5) In general, the School environment would be inappropriate for the Student. (Id.) The Parents argues that the CSE did not respond to any of her formal rejections of the recommended placement. (Id. at 6-7)
The Parents request a substantive finding that the Department of Education (“DOE”) failed to provide the Student with a FAPE for the 2013-2014 school year. (Id. at
10) The Parents seeks reimbursement for tuition at the Private School, and reimbursement for fees, appropriate related services, and transportation. (Id.)
District’s Position
The District issued an answer containing a general denial of the allegations set forth in the Parents’ Due Process Complaint. (Ex. 3) Specifically, the District argues that a procedurally and substantively appropriate IEP was developed for the Student. (Ex. IHO
2-3) The IEP was based on sufficient evaluative materials. (Id. at 3) The IEP was calculated to meet the Student’s unique needs. (Id. at 5-6) Thus, the District’s recommended program was reasonably calculated to confer educational benefits to the Student. (Id. at 7)
The District argues that the Private School is not an appropriate placement. (Id. at
8) On this issue, the Parents did not meet their burden of showing that the Student is making objective progress in the Private School. (Id.) Finally, the District argues that the equities do not support the Parents’ claims.
Student History
The Student’s disability classification is ( ). He was diagnosed with (“ ”);
; ; and a . (Ex. 5, 13; Tr. 368, 465-67)
On or about March 13, 2013, the Student was observed in the classroom. (Ex. 10-
1) The Observation indicated that the Student seemed to . (Id.) The Student was otherwise . (Id.) He appeared to ; although he had difficulty . (Id.)
On or about April 28, 2013, the Student was administered a psycho-educational assessment to update his current levels of test performance. (Ex. 8-1) The Student was evaluated via the ( ). (Id. at 2)
According to the , the Student’s was in the percentile. (Id.) His was also within . (Id. at
3) He scored . (Id.) In the area of ( ), the Student ranked in the percentile. (Id.) This was a slight improvement from the prior year. (Id.)
A Teacher Report was issued on or about May 6, 2013. (Ex. 9-1) The Student required review and reinforcement of his skills. (Id.) His skills were lacking in the areas of , , and . (Id.) The Report noted that the Student would be able to , but for his . (Id.) The Student understands , but he has difficulty , and he is . (Id.)
The May 6, 2013 IEP includes much of the information from the above-mentioned reports. Therein, the Student was recommended for placement in a class with modified promotion criteria. (Ex. 5-11, 16)
Overview
This is a reimbursement case. (Ex. A-10) The Parents seek tuition reimbursement due to the District’s alleged failure to provide the Student with a FAPE during the 2013- 2014 school year. (Id. at 1) The District maintains that it offered the Student a FAPE during this time period. (Ex. 3; IHO 2) For this reason, the District argues that the Parents’ allegations are without merit. (Id.) A hearing on this matter was held on September 17, 2014; September 23, 2014; October 28, 2014; February 3, 2015; February 4, 2015; and February 10, 2015. A Pendency Order was issued on April 15, 2014.
Findings of Fact
The following evidentiary details are established as factual findings in this case:
1. The Parents did not offer sufficient evidence to show that the CSE was unduly constituted. (Ex. 5-17)
2. The CSE was duly constituted. (Ex. 5-17)
3. The May 6, 2013 IEP was based on sufficient evaluative material. (Ex. 5; 8; 9; 10)
4. The CSE used these evaluative materials in a good faith. (Id.)
5. The District school psychologist explained to the Parents the importance of having the Student evaluated. (Tr. 470-71)
6. The Parents received copies of the evaluations and reports at the May 6, 2013 IEP meeting. (Id. at 471)
7. The relevant Student evaluations and reports were discussed at the IEP meeting.
(Id.)
8. The Parents were given a meaningful opportunity to participate in the IEP
meeting. (Id.)
9. The goals listed in the May 6, 2013 IEP were generally designed to meet the Student’s needs. (Ex. 5-5-10)
10. The May 6, 2013 IEP did not offer the Student a program in the least restrictive environment. (Ex. A-3; IHO 1-10; Tr. 484-85)
11. The DOE did not appeal the earlier decisions issued by IHOs and
. (Ex. B; C)
12. The Student was attending the Private School at the time of the May 6, 2013 IEP meeting. (Ex. B; C; G; I)
13. The District knew the Student was attending the Private School during the 2012- 2013 school year—when the IEP meeting was held. (Id.)
14. The District issued the Final Notice of Recommendation (FNR) on or about the same day as the May 6, 2013 IEP meeting. (Ex. 4)
15. On or about August 15, 2013, the Parent notified the District that the recommendation was inappropriate for the Student. (Ex. D-1)
16. The District was given an opportunity to devise an appropriate educational plan.
17. The District was given an opportunity to determine whether a FAPE could be provided in the public school recommendation. (Id.)
18. I find that the Parents gave the District sufficient notice of the unilateral placement. (Id.)
19. At the Private School, - percent ( ) of the Student’s academic schedule is devoted to . (Tr. 323)
Discussion
A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The first prong, whether the services offered by the board of education were inappropriate, is the proper heading under which to consider the alleged violations in this case.
Prong I
The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); W alczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. A pplication of a Child with a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. S traube v. Florida UFSD, 801 F.
Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F.
Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)
This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (A pplication of a Child Suspected of Having a Disability , Appeal No. 93-9). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]).
[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. 3. For the most part, these additional assertions are duplicative of those contained in the petition. 6 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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).
Procedural Violations
CSE Composition
I begin with the Parents’ first alleged procedural violation: The CSE responsible for the May 6, 2013 IEP was improperly constituted. (Ex. A-1) The IDEA requires a CSE to include, among others, one special education teacher of the student or, where appropriate, not less than one special education provider of the student (20 U.S.C. §
1414[d][1][B][ii]-[iii]; see 34 CFR § 300.321[a][2]-[3]; 8 NYCRR 200.3[a][1][iii]; see 8 NYCRR 200.1[xx] [defining "special education provider, in pertinent part, as an "individual qualified . . . who is providing related services" to the student]; 8 NYCRR
200.1[yy] [defining "special education teacher," in pertinent part, as a "person,…, certified or licensed to teach students with disabilities"]). Section 4402 (1)(b)(1) of the Education Law provides that a CSE shall consist of the child's teacher as defined by Federal regulation, a school psychologist, a representative of the school district who is authorized to provide or supervise the provision of special education, a parent of a child with a handicapping condition and a school physician, except that the physician need not attend a meeting unless requested to do so by a parent. (SRO No. 92-37)
The District offered the May 6, 2013 IEP as Exhibit 5. The attendance page attached thereto indicates that the Related Service Provider/Special Education Teacher;
Parent/Legal Guardian; District Representative; School Psychologist; Parent Member;
Private School Educational Coordinator; and Private School Counselor and Provider attended the IEP meeting. (Ex. 5-17) Thus the CSE was properly constituted. The Parents did not offer evidence or testimony to dispute the validity of the attendance page. Nor is there any other evidence in the record to support the Parents’ claim. For these reasons, the allegation is dismissed.
Evaluations
I turn next to the allegation that the CSE failed to evaluate the Student in areas of suspected disability prior to the May 6, 2013 IEP meeting. (Ex. A-2) Federal and state law requires an IEP to be based upon a complete assessment of a student’s abilities and needs. 34 C.F.R. §§ 300.305, 300.324; 8 N.Y.C.R.R. §§ 200.4(b), (f)(1). In performing the annual review of an IEP, a CSE team must consider a Student’s initial or most recent evaluations; his current assessments; his strengths; and his academic, developmental, and functional needs, in addition to parental concerns. § 200.4(f)(1). No single measure or assessment shall be used by a school district as the sole criterion for determining an appropriate educational program for a student. § 200.4(b)(6)(v). Moreover, the CSE must conduct a complete evaluation of a student before recommending any significant change of placement. 34 C.F.R. § 104.35(a).
In this instance, the May 6, 2013 IEP was informed by a near complete assessment of the Student’s abilities. The psycho-educational evaluation took place on or about April 28, 2013. (Ex. 8) The information from that Report is documented in the IEP. (Ex. 5-1)
The CSE also utilized the May 6, 2013 Teacher Report, and March 13, 2013 Classroom
Observation. (Ex. 9; 10) The information and findings from these reports are also incorporated in the IEP. (Ex. 5-2-3) This is not a case where the CSE considered a single measure. (Ex. 5; 8; 9; 10) Therefore, I find that the IEP was based on sufficient evaluative material. (Id.) I find also that the CSE used these evaluative materials in a good faith effort to formulate an adequate IEP for the Student. (Id.)
Parental Participation
I now consider the Parents’ allegation that the CSE failed to provide the Parent and the representatives from the Student’s school with a full and meaningful opportunity to participate in the IEP meeting and development. (Ex. A-2) The rules require the CSE to ensure that all meeting participants, including the parents and the student’s teachers and providers, are afforded an opportunity to meaningfully contribute to a discussion of the student’s needs so that a true conference is possible. 8 N.Y.C.R.R. §§ 200.3, 200.4(f)(1); 34 C.F.R. §§ 300.324.
As previously mentioned, the attendance page attached to the May 6, 2013 IEP indicates that the Parent; Private School Educational Coordinator; Private School Counselor; and Private School Provider were in attendance. (Ex. 5-17) There is no indication in the record that the Parents or the representatives from the Private School were given insufficient notice of the IEP meeting. The Parent even testified that the DOE psychologist contacted her in March and explained to her the importance of having the Student evaluated. (Tr. 470-71) The Parent testified that she received copies of the evaluations and reports at the May 6, 2013 IEP meeting. (Id. at 471) These items were discussed at the IEP meeting. (Id.) These facts are a few among many in the record which suggest that the Parent was given a meaningful opportunity to participate in the IEP meeting. Hence, I find no basis for this alleged procedural violation.
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 (20 U.S.C. § 1415[f][3][E][ii]). I cannot find a basis for any of the Parent’s alleged procedural violations. Therefore, I cannot find that procedural inadequacies led to a deprivation of FAPE for this Student. More appropriate in this case are the Parent’s allegations pertaining to the substance of the IEP. (Ex. A-1, 3-9)
Substantive Claims
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 (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" (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" (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim , 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (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.'" (Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254) The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment ( “LRE”). (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114)
CSE’s Lack of Understanding
Here, the Parents alleged that the natural consequence of using insufficient evaluative material was an inadequate understanding of the Student’s needs. (Ex. A-1-2)
Thus, the CSE’s lack of understanding led to an IEP that was not reasonably calculated to provide meaningful educational and social/emotional benefit. (Id. at 3) Worse, the Parents claimed that implementing this IEP would lead to regression. (Id.) Despite the DOE’s adherence to procedural guidelines, I find that the May 6, 2013 IEP was substantively flawed because the recommended program did not represent the least restrictive environment (“LRE”). This case eventually turns on the least restrictive environment issue.
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 CFR 7 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlow e v. New Y ork City Bd. of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 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 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018).
Goals
I begin with the issue of whether the goals included in the May 6, 2013 IEP were designed to meet the Student’s needs. An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]).
Here, the Parents argued that the goals failed to address the Student’s difficulties with , ,
, , and . (Ex.
IHO 1-11-12) The Parents cite the May 6, 2013 Teacher Report as evidence of these difficulties. (Ex. 9) Upon review of the Teacher Report, I find that the goals listed in the May 6, 2013 IEP were generally designed to meet the Student’s needs. (Ex. 5-5-10) First, the Report does not indicate that the Student has difficulty .
(Ex. 9-1) In fact, the Report says that the Student’s skills are strong. (Id.) The Student may need when , but he can use and skills appropriately so that he can . (Id.) The Parents also relied on the testimony of the Private School Educational Coordinator. (Ex.
IHO 1-11-12) She testified that the goals were inappropriate for the Student as written.
(Id.) The Educational Coordinator’s testimony was (in part) that some of the goals were relevant, but they were insufficient because they were generic. (Tr. 415-17) For instance, there should have been a specific goal for within the goals. (Tr. 415) Upon review of the IEP and corresponding evaluations used to formulate the IEP, it is not clear that the goals listed in the IEP are so generic as to deprive the Student of a FAPE. I therefore dismiss this allegation.
Least Restrictive Environment
I turn next to the least restrictive environment issue. The Parents argue that the recommended placement is not the least restrictive environment (LRE). (Ex. A-3) Central to the LRE issue in this case is the Parents’ claim that the District failed to recommend any in the May 6, 2013 IEP, despite the fact that was recommended for the Student in the year prior. (Ex. IHO 1-10)
In selecting an appropriate program, school districts must comply with the LRE requirement of the IDEA, which requires that students with disabilities be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1). There is a strong preference for mainstreaming children with disabilities in regular education classrooms whenever possible (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; W alczak, 142 F.3d at 122; see Rowley, 458 U.S. at 202). Special education and related services must be provided in the least restrictive setting consistent with a child's needs (W alczak, 142 F.3d at 122). Removal of the child to special classes or separate schooling "occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" (34 C.F.R. §
300.550[b][2]; see W alczak, 142 F.3d at 122).
In this instance, the recommended placement is a . (Ex. 5-11) This is the placement that the Parents argue is too restrictive because it is not accompanied by a plan for . (Ex. IHO 1-10; Tr. 88-89) At first glance, the Private School program appears even more restrictive1. (Tr. 364) There, the Student attended a class of students during the 2013-2014 school year. (Id.)
Even though the Student’s class size at the Private School was than the recommended placement, the Student was as a part of the Private School program. (Tr. 293-96) The Parents point to the as the foundation for the Student’s development. (Ex. IHO 1-23-24; Tr. 313 Ex. D p.[3] paragraph
1 A direct comparison of the Private School program and the recommended public placement, is not a proper legal consideration (Prong I and Prong II have different legal standards). Parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v . Bd. of Ed . of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch . Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G . v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). District recognized the need for services in previous IEPs, and the Student was progressing with the help of services at the Private School. (Tr. 293-96, 484-85) I agree with the Parents that the DOE failed to state a reason for excluding services from the May 6, 2013 IEP, although it should have. (Ex. A-3; IHO 1-10)
Furthermore, the Parent, whose testimony I credit, testified that the only reason she did not object to the recommended placement during the CSE meeting was because she presumed that the Student would continue to receive the same opportunities he was previously offered by the District. (Tr. 484-85) An IEP is required to provide a program in the least restrictive environment, educating the Student to the maximum extent appropriate beside non-disabled peers. M .W . v. New Y ork City Dep’t of Educ., 725 F.3d 131, 144-46 (2d Cir. 2013). Without the inclusion of services, I find that the May 6, 2013 IEP does not offer this Student a program in the least restrictive environment. The case turns on this point, and for this reason I find that the Student was not provided a FAPE during the 2013-2014 school year.
The Parents also complained that the recommended placement would be incapable of implementing the IEP (Ex. A-5), and that the School environment would be plainly inappropriate for the Student. (Id.) The Second Circuit has established that "'educational placement' refers to the program – such as the classes, and additional services a child will receive – rather than the 'bricks and mortar' of the specific school." (T.Y . v. New Y ork City D ep't of Educ., 584 F.3d 412, 419-20, cert.
denied, 130 S. Ct. 3277 [2010]; see K.L.A . v. W indham Southeast Supervisory Union, 2010 WL 1193082, at 2 [2d Cir. March 30, 2010])
I need not make a finding with respect to the bricks and mortar issue in this case. I find that District failed to offer the Student a FAPE during the 2013-2014 school year by recommending a placement that was not the least restrictive environment. For this reason, I resolve Prong I in favor of the Parents.
Prong II
I now consider whether the Parent has met her burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” S chreiber v. E. Ramapo Cent. Sch. Dist., 700
F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”
Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.
2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d
Cir. 2006]
Although the burden of proof is on the school district during an impartial hearing, a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see 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]).
In this case, the Parents argue that they are not even required to demonstrate the appropriateness of the Private School. (Ex. IHO 1-21) In support of their position, the Parents cite M .N. v. New Y ork City Dep’t of Educ., 700 F. Supp. 359 (S.D.N.Y. 2010).
Therein, the Court stated, where a Parent seeks continuation of his or her child’s last agreed upon placement, binding precedent establishes that consideration of the second and third Burlington/Carter factors is wholly unnecessary. M .N., 700 F. 2d 356. The rationale is that the Parents are merely seeking to maintain the services they are currently receiving at the DOE’s expense. (Id.)
I agree with the Parents’ position so far as it pertains to Prong II. In this instance, the Parents are only receiving services at the DOE’s expense because the Parents were successful in past litigation. (Ex. B; C) In a Decision dated December 19, 2013, IHO granted funding at the Private School as a matter of pendency. (Ex. B-14) IHO granted relief in the form of pendency because the DOE did not appeal the previous decision rendered in the Parents’ favor by IHO (Ex. C-9; B-14) This was an alternative theory of relief. (Id.) Funding was granted for the time period spanning from the filing of the Complaint Notice to the end of the 2012-2013 school year. (Id.)
The May 6, 2013 IEP suggests that the District’s preferred placement is a class with modified promotion criteria at a DOE school. (Ex. 5-11, 16) Nonetheless, the DOE did not appeal the earlier decisions issued by IHOs and .
Therefore, I adopt the rationale used by IHO in the December 19, 2013
Decision. (Ex. B) Thus, the Parents are not required to present further evidence regarding the appropriateness of the Private School. However, I do not endorse the Parents’ position that Prong III is wholly unnecessary.
Prong III
Equities
Tuition 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 child from public school, or by written notice ten 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." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) 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])
In this case, the Student was attending the Private School at the time of the May 6, 2013 IEP meeting. (Ex. B; C; G; I) The District knew the Student was attending the Private School during the 2012-2013 school year, when the IEP meeting was held. (Id.)
The District issued the FNR on or about the same day as the May 6, 2013 IEP meeting.
(Ex. 4) On or about August 15, 2013, the Parent notified the District that the recommendation was inappropriate for the Student. (Ex. D-1) Therefore they intended to keep the Student in the Private School until a satisfactory recommendation could be made. (Id. at 4) Accordingly, I find that the District was given an opportunity to devise an appropriate plan, and determine whether a FAPE could be provided in the public school recommendation. Greenland Sch. Dist., 358 F.3d 150, 160 [1st Cir. 2004]). Also, I find that the Parents gave the District sufficient notice of the unilateral placement. In the faccc of this knowledge the District chose not to act.
I turn last to the issue of instruction during the Student’s weekly schedule. Even if a tuition is granted, it should be reduced by the amount of instruction during the student’s weekly schedule. J.G. ex rel. N.G. v. K iryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606.
I find preliminary guidance in the December 19, 2013 Decision issued by IHO
. (Ex. B) Therein, IHO found that the Parents were not entitled to funding for percent ( ) of the program; this percentage represented the time allotted for / . (Id. at 13) In this case, the Program Director of the Private School testified that the amount of time dedicated to was - percent ( ). (Tr. 323) In this case, I credit the testimony of the Private School Program Director. Therefore, the Parents’ tuition reimbursement award is hereby decreased by - percent ( ).
It is therefore ORDERED,
1. That the District reimburse/pay the Parents/Private School for - percent ( ) of the tuition at the Private School upon the presentation of proper invoices for the payment of such tuition.
So Ordered,
Dated: April 17, 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
A Impartial Hearing Request, 1/27/14, 8pp.
B FOFD, 12/19/2013,17pp
C FOFD, 1/31/12, 13pp
D Letter, 8/15/13, 5pp
E Letter, 10/17/13, 6pp
F Program Description, 2013-2014, 1pp
G Class Schedule, 2013-2014, 1pp
H Affidavit, 3/26/14, 1pp
I Tuition Contract, 9/04/13, 2pp
J Attendance Record, 2013-2014, 1pp
K 2012 Tax Return, 4/15/13, 2pp
IHO
I Brief, 32pp
II Brief, 13pp
DOE
1 Response Form, 2/11/14, 1pp
2 Notice, 1/29/14, 2pp
3 Due Process Response, 2/10/14, 3pp
4 FNR, 5/6/13, 1pp
5 IEP, 5/6/13, 17pp
6 Conference Agenda Sheet, 5/6/13, 5pp
7 Review Meeting Questions, 5/6/13, 2pp
8 Report, 4/28/13, 4pp
9 Report, 5/6/13, 4pp.
10 Observation, 3/13/13, 1pp
11 Form, 1/23/13, 1pp
13 Request for Accomodations, 5/2/13, 1pp
14 Form, 5/6/13, 1pp
15 Consent, 2/4/13, 1pp
16 Per Session Appointment Letter, 4/19/13, 1pp
17 SESIS Events, 4/20/12, 7pp
18 CSE Response to Parent Letter, 9/20/13, 1pp
Footnotes
[3] Thus, the Parents claim that this loss of individual support in the May 6, 2013 IEP contributed to the deprivation of FAPE during the 2013-2014 school year. (Ex. A-3) The