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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: October 16, 2014
November 5, 2014
Actual Record Closed Date: April 6, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2014
ESQ., Attorney — Student
District Representative — DOE
Teacher Assigned — DOE
Teacher Assigned — DOE
Team Leader — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON NOVEMBER 5, 2014
ESQ., Attorney — Student
District Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated March 20, 2014. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents, and/or directly pay for, costs associated with the student’s unilateral private placement at the for the 2013/14 school year (Ex. P-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 May 27, 2014, following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter was thereafter held on: October 16, 2014 and November 5, 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 March 20, 2014 due process complaint, the student was years old and exhibits , (Exs. SD-3 at 1). For the 2013/14 school year, the student attended the at the
(Exs. P-A, P-B, P-C, P-D, P-E, P-G, P-H, P-J). The
Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities (Ex. P-J at 1). See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with a learning disability is not in dispute in this hearing (Exs. SD-4 at 1, SD-5 at 1, P-A, P-B). See 34 C.F.R. §
300.8(c)(6);[8] NYCRR § 200.1(zz)(6).3
On March 4, 2013, the CSE convened to develop an IEP for the student through March 3, 2014. The CSE recommended that the student receive
(“ ”) services for / , , and in a school on a month basis.[4] The CSE also recommended that the student receive the related service of , time per week for minutes per session (Ex. -4 at 7-8, 10-11).
In a letter dated March 8, 2013, the parents requested a / evaluation of the student (Ex. SD-2). On April 29, 2013, the student was administered the - (“ ") to assess her skills. The test results indicated that the student’s
Skills were within the range, in the percentile, when compared to same aged peers. The student was able to provide and skills appeared to be age-appropriate. / was not recommended (Ex. -3 at 4).
In a Final Notice of Recommendation (“FNR”) dated August 9, 2013, the parents were informed that the student’s recommended program would be implemented at
3
(Ex. P-A at 3).
In a letter dated August 23, 2013, counsel for the student advised the CSE that the parents were rejecting its proposed program for the student and that they would unilaterally place the student at the for the 2013/14 school year at public expense (Ex. P-B).
The CSE reconvened on October 30, 2013 to review the April 29, 2013
/ evaluation. The CSE declined to add / to the student’s IEP. The CSE did, however, change the student’s promotional criteria from a modified to a standard promotional criteria (Exs. SD-4 at 12, SD-5 at 1-2, 12, P-A at 4).
In a school location letter dated December 17, 2013, the parents were advised that the student’s recommended program would continue to be implemented at (Exs. SD-
6, P-A at 4).
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 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. 96-98).
B. The Parents
The parents are entitled to tuition reimbursement, and/or direct payment for, the student’s unilateral placement at the during the 2013/14 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.
98-102; Exs. P-A, P-B).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v.
T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206-07 (1982).[5]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" W alczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v.
Carm el Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c)
caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M .H., 685 F.3d at 245; A .H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."
W alczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patsk in v. B oard of Educ., 583 F. Supp. 2d
422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.
See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where B urlington/Carter factors are satisfied. M r. A . v.
New Y ork City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W . v.
New Y ork City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v.
Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Sufficiency of Evaluative Information
Turning to the first prong of the B urlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parents assert that the CSE failed to obtain sufficient evaluative data to identify the student’s then-present levels of needs of the student and to develop an appropriate educational program for the student (Exs. P-A at 3,
P-B).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, and must conduct one at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary, see 34 C.F.R. §§ 300.303(b)(1)-(2); 8 NYCRR § 200.4(b)(4).
A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
New York State regulations require the CSE to "arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation." 8 NYCRR § 200.4(b)(4); see also 20 U.S.C. §
1414(a)(2)(A); 34 C.F.R. § 300.303(a).
According to the testimony offered by Ms. , a special education teacher present at the March 4, 2013 meeting, the principal source of information upon which the CSE relied upon in developing the student’s IEP was an oral report from the student’s teacher at the (R. 42-45, 50; Ex. SD-4 at 13).
Ms. stated that the team did not review any documents or evaluations concerning the student prior to the March 4, 2013 meeting (R. 48, 56). Given the paucity of evaluative information about the student before the March 2013 CSE or entered into the hearing record, I find that the CSE lacked sufficient evaluative information to develop the student’s IEP for the 2013/14 school year. See A pplication of a Student with a Disability (Appeal No. 15-001) at 11-12 (SRO Feb. 25, 2014).[6]
C. Present Levels of Performance and Annual Goals
The parents also assert that the March 4, 2013 IEP failed to include a sufficient description of the student’s needs or appropriate annual goals to address the student’s needs (Exs. P-A at 4, P-B).
Among other elements of an IEP is a statement of a student’s academic achievement and functional performance and how the student’s disability affects his or her progress in relation to the curriculum. See 20 U.S.C. §
1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1); 8 NYCRR §§ 200.1(ww)(3)(i), 200.4(d)(2)(i). In developing the recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. See 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2).
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
In the present case, given the DOE’s failure to establish that the March 2013 CSE considered sufficient evaluative data about the student, as discussed above, I cannot reasonably conclude that that the IEP sufficiently described the student’s academic, functional, and management needs or developed appropriate annual goals aligned with those needs (R. 50-54). See A pplication of a Student with a Disability (Appeal No. 15-
001) at 12-13 (SRO Feb. 25, 2014). I therefore find that the CSE’s IEP for the student for the 2013/14 school year failed to establish annual educational goals which were reasonably related to her educational deficits.
D. CSE Composition
The parents assert that the October 2013 CSE was not duly constituted in that it lacked both a teacher and a / (Ex. P-A at 3-4).
An IEP must be prepared by a CSE having each of its required members. See, e.g., A pplication of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No.
99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; and an individual who can interpret the evaluations being reviewed by the CSE. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).
The evidence entered into the hearing record reflects that the October 2013 CSE was not duly constituted when it developed an IEP for the student for the 2013/14 school year. The IDEA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be participating in a general education environment. See 20 U.S.C. § 1414(d)(1)(B)(ii); 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); see also E.A .M. v. New Y ork City D ep't of Educ., 2012 W.L.
4571794, at *6 (S.D.N.Y. Sept. 29, 2012). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel." See 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR
200.3(d).
It is undisputed that a regular education teacher member was absent from the October 2013 CSE meeting (Ex. SD-5 at 13). As the CSE recommended that the student receive services for the majority of her school day (Exs. SD-4 at 7, SD-5 at 7-8), I find that a regular education teacher was required to attend the October 2013 meeting.
While the absence of a regular education teacher member is sometimes excused as harmless, see, e.g. J.F. v. New Y ork City D ep't of Educ., 2012 WL 5984915, at *7 (S.D.N.Y. Nov. 27, 2012); E.A .M . v. New Y ork City D ep't of Educ., 2012 WL 4571794, at *6-*7 (S.D.N.Y. Sept. 29, 2012), the hearing record developed in this matter demonstrates that the absence of a regular education teacher from the October 2013 meeting significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, see A rlington Cent.
Sch. Dist. v. D.K., 2002 WL 31521158 (S.D.N.Y. Nov. 14, 2002). The hearing record reflects that the student’s teacher at the and the parents disagreed with the CSE’s recommendation to provide the student with services (R.
55, 62-63; Exs. SD-4 at 12, SD-5 at 12-13, P-H at 2). The presence of a duly certified regular education teacher familiar with the course curriculum would have been able to explain to the parents, among other things, how the student would meet a standard promotional criteria and how recommended program modifications (a/k/a needs) contained in the October 30, 2013 IEP would have been implemented to address the student’s struggles within the setting (Ex. SD-4 at 2, 12, SD-5 at 3-4, 12).
The CSE also erred in failing to include a duly licensed / at the October 2013 meeting. It is undisputed that a / or was absent from the October 2013 CSE meeting (R. 79; Ex. SD-5 at 13).
While there is no specific requirement that a / be included in a CSE meeting and the inclusion of related services personnel is discretionary, see 34 C.F.R. § 300.321(a); 8 NYCRR § 200.3(a)(1), I find that the CSE abused its discretion in not inviting a / to the October 2013 meeting, see 8 NYCRR §
200.3(a)(1)(ix), as the primary purpose of the October 2013 CSE meeting was to review an April 29, 2013 / evaluation (R. 76-77; Exs. SD-3, SD-5).
E. Cumulative Impact
To the extent the DOE’s violations described above constitute procedural violations, a finding that the DOE denied the student a FAPE is appropriate 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). Further, under the circumstances of this case, I find it appropriate to consider the cumulative impact of the identified deficiencies in order to determine whether or not the DOE offered the student a FAPE. See T.M. v. Cornw all Cent. Sch.
Dist., 752 F.3d 145, 170 (2d Cir. 2014); R.E., 694 F.3d at 191 (noting that “even minor violations may cumulatively result in a denial of a FAPE”); see also M.L. v. New Y ork City Dep’t of Educ., 2014 WL 1301957, at *10 (S.D.N.Y. Mar. 31, 2014); R.B. v. New
Y ork City Dep’t of Educ., 15 F. Supp. 3d 421, 434 (S.D.N.Y. 2014).
While the procedural violations described above, standing alone or when considered individually, might not result in the denial of a FAPE, the aggregate effect of the violations in this case – including the CSE’s failure to obtain and produce sufficient evaluative information in the hearing record necessary to examine the appropriateness of the March 2013 and October 2013 IEPs – requires a finding that the DOE failed to offer the student a FAPE for the 2013/14 school year. See R.E., 694 F.3d at 191; R.B., 15 F.
Supp. 3d at 434. While multiple procedural violations may not result in the denial of a FAPE when the “deficiencies . . . are more formal than substantive,” id., quoting F.B ., 923 F. Supp. 2d at 586, here the procedural violations identified above denied the parents a substantive opportunity to participate in the process of developing an appropriate educational program for the student. Accordingly, the violations identified above, when considered cumulatively with the DOE’s failure to establish the appropriateness of the March 4, 2013 IEP (see below), resulted in the denial of a FAPE for the 2013/14 school year. See A pplication of a Student with a Disability (Appeal No. 15-001) at 15 (SRO Feb.
25, 2014).
F. Substantive Appropriateness of Proposed Program
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203.
The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” M rs. B.
v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
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 her with meaningful educational benefit. The student’s teacher and parent advised the March 2013 CSE that the student required a classroom in a environment to address her special education needs (Exs. SD-5 at 2-3,
12-13, P-B at 2). While the March 2013 CSE’s recommendation for services for the student was premised on the belief that the student was “ ” (R. 47), no evidence was submitted into the hearing record to substantiate the CSE’s analysis.
G. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2013/14 school year, I turn to the appropriateness of the parents’ private program.
With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet her special education needs. See Frank G. v. B oard of Educ., 459 F.3d 356, 363 (2d Cir.
2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65.
When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also W eaver v. Millbrook Cent. Sch. Dist., No. 09-CV-
692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the affidavits of and the student’s parent, I find that the was an appropriate program for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (Exs. P-F, P-G,
P-H, P-J).
H. 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 a letter dated August 23, 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 (Ex. P-B).
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 (Exs. SD-4, SD-5), 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-C, P-J), 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 is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs associated with the student’s unilateral private placement at for the 2013/14 school year, and shall directly pay the private school for any outstanding costs associated with said placement.
Dated: April 13, 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.
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 3/20/14, 6 pgs.
B. Ten Day Notice & Request for Transportation, 8/23/13, 3 pgs.
C. Enrollment Contract, , 1/1/13, 1 pg. (double sided)
D. Tuition Affidavit, , 2/15/14, 1 pg.
E. Attendance Record, , 6/18/14, 1 pg.
F. Student Schedule, , undated, 2 pgs.
G. Year End Report, , undated, 27 pgs.
H. Affidavit of Parent, 10/3/14, 2 pgs.
I. Fax Journal Report, 10/14/14, 1 pg.
J. Affidavit of , 10/24/14, 4 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Letter from parent, 3/8/13, 1 pg.
3. / Evaluation, 4/29/13, 4 pgs.
4. Individualized Education Program (IEP), 3/4/13, 13 pgs.
5. Individualized Education Program (IEP), 10/30/13, 13 pgs.
6. School Location Letter, 12/17/13, 1 pg.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 6/2/14, 1 pg.
II. Confirmation of Extension, 6/27/14, 1 pg.
III. Confirmation of Extension, 8/1/14, 1 pg.
IV. Confirmation of Extension, 8/18/14, 1 pg.
V. Confirmation of Extension, 9/29/14, 1 pg.
VI. Confirmation of Extension, 11/3/14, 1 pg.
VII. Confirmation of Extension, 12/3/14, 1 pg.
VIII. Confirmation of Extension, 12/24/14, 1 pg.
IX. Confirmation of Extension, 2/2/15, 1 pg.
X. Confirmation of Extension, 2/23/15, 1 pg.
XI. Confirmation of Extension, 4/3/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 88-89; 103-104; Exs. IHO-I - IHO-XI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[8] NYCRR § 200.1(zz)
[4] State regulations define services as the "provision of specially designed instruction and academic instruction provided to a group of students with disabilities and non-disabled students," and require such classrooms to be "minimally" staffed with both a regular education teacher and a special education teacher. See 8 NYCRR §§ 200.6(g), (g)(2). Recently, the Second Circuit described services as a placement " " See M.W . v. New Y ork City D ep't of Educ., 2013 WL 3868594, at *9-*12 (2d Cir. July 29, 2013).
[5] 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] Although the parents subsequently requested a / evaluation of the student, the CSE failed to reconvene to consider the April 29, 2013 / evaluation until after the onset of the 2013/14 school year (Exs. SD-2, SD-3, SD-5).