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FINDINGS OF FACT AND DECISION
Case Number: 164096
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 13, 2017
Actual Record Closed Date: January 26, 2017
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2017
Attorney — Student
Parents
Program Director, (via telephone) — Student
District Representative, — DOE
Special Education Teacher (via telephone) — 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 October 27, 2016. The primary issue to be determined at this hearing is whether 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 2016/17 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 October 31, 2016 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A hearing in this matter was thereafter held on January 13, 2017. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the October 27, 2016 due process complaint, the student was and has been diagnosed with (Exs. P-A at 2, P-H at 1, P-I at 1, P-M, P-P at 1). For the 2016/17 school year, the student has been enrolled by his parents in , located at (Exs. P-A at 2, P-C, P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-K, P-L). The Commissioner of Education has not approved as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7.
. See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).[2]
The student has ,
. While he demonstrates
, his rate of progress is dictated (Exs. P-A at 2, SD-1 at 1, SD-2 at 1).
The student is
. He is able to ,
. He uses
during the school day and within the community (Exs. P-A at 2, SD-1 at 1, SD-2 at 1).
The student requires , including
. He is
. He requires
(Exs. P-A at 2, SD-1 at 1, SD-2 at 1).
On October 5, 2015, the CSE convened to develop and IEP for the student through October 3, 2016. The CSE recommended that the student receive the majority of his instruction in a . The CSE also recommended that the student receive
;
and
(Exs. SD-2 at 13-14, 17-19, SD-5).
On November 18, 2015, the CSE reconvened to develop and IEP for the student through November 16, 2016. The CSE recommended that the student receive school . The CSE also recommended that the student receive , for ; and / , (Exs. SD-1 at 14-15, 17-19, SD-4).
In a letter dated August 17, 2016, the parents advised the CSE that they were rejecting its proposed program for the student and stated their intent to unilaterally place the student at for the 2016/17 school year at public expense (Ex. SD-9). On
August 31, 2016, the parents signed a contract for the student’s enrollment at for the 2016/17 school year (Ex. P-F). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at for the 2016/17 school year should be denied.
The DOE offered the student a free appropriate public education in the least restrictive environment. The DOE asserts that was not an appropriate program for the student and that the equities do not support a reimbursement and/or direct payment award.
B. The Parents
At the November 18, 2016 meeting, the CSE improperly classified the student as . The parents assert that the student should be classified as . The DOE should also be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at for the 2016/17 school year. The DOE failed to develop an appropriate educational program for the student. 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 parents also seek additional for the student, that the student be provided with a recommended , and that a evaluation of the student be completed by the DOE (R. 202-214; Ex. 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).[3]
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);
November 18, 2015 CSE improperly classified the student as (Ex. P-A at 4).4
The IDEA provides that a student' s special education programming, services and placement must be based upon a student' s unique special education needs and not upon the student' s disability classification. See 20 U.S.C. § 1412(a)(3) ("Nothing in this chapter requires that children be classified by their disability so long as each child . . . is regarded as a child with a disability under this subchapter"); 34 C.F.R. § 300.111; M.R. v.
South Orangetow n Central Sch. Dist., 2011 WL 6307563, at *9 (S.D.N.Y. Dec. 16, 2011)
(finding that once a student' s eligibility is established "it is not the classification per se that drives IDEA decision making; rather, it is whether the placement and services provide the child with a FAPE"). In other words, 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), and 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).
A school district bears the burden of establishing the appropriateness of the classification recommended by its CSE. See, e.g., A pplication of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 03-055 (SRO Nov. 21, 2003);
A pplication of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 01-
039 (SRO March 11, 2002).
The DOE failed to offer any evidence at the hearing in support of its classification of the student with . While the November 18, 2015 IEP indicates that the student was assessed by his classroom teacher in the spring of 2015 using , the results of that inventory were not offered by the DOE for entry into the hearing record (Ex. SD-1 at 1). In a letter dated July 15, 2016, the parent requested evaluations of the student (Ex. P-B). While an August 4, 2016 evaluation was entered into the hearing record (P-B), there was no evidence of any response by the DOE to the parent’s request for a evaluation.
The evidence contained in the hearing record supports classification of the student.
,
.
,
.
. 8
NYCRR § 200.1
In a letter dated August 15, 2016,
, stated that the student
,
, .
(Ex. P-M).
The CSE will be directed to reconvene and reclassify the student as . The CSE will also be directed to initiate a evaluation of the student and provide the student with recommended for him in the August 4, 2016 evaluation.
C. Proposed Public Program
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).
The evidence contained in the hearing record does not support a finding that the DOE offered the student a FAPE in the least restrictive environment. The student’s . The student demonstrates the ability , but because of his , he requires in order to achieve all that he is capable of. He
requires a
He requires in order to have curriculum, as well as to participate and learn . The student requires an
, , as well
as in order to progress academically (Exs. P-A at 2-3, P-H at 1-18, P-M). The testimony of , a special education teacher who attended the November 2015 meeting, does not support a finding that the CSE’s recommended would have provided the student with the he required in order to learn (R. 38-108; Exs. SD-
1 at 14-15, 17-19, SD-2 at 13-14, 17-19, SD-5, SD-6).
Additionally, despite its recognition that the student requires , the November 2015 CSE failed to recommend a for the student . The student cannot and requires
(Exs. SD-1, SD-2, P-I, P-J, P-K). Given that
the student to attend to his
needs in the classroom, the CSE will be directed to add a to the student’s IEP, either at its next meeting or by IEP amendment.
D. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2016/17 school year, I turn to the appropriateness of the parents’ private program.
With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet her special education needs. See Frank G. v. B oard of Educ., 459 F.3d 356, 363 (2d Cir.
2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65.
When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also W eaver v. Millbrook Cent. Sch. Dist., No. 09-CV-
692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of , ’s Education Program Director, and the student’s parent, I find that is an appropriate program for the student because it provides him with specifically designed, individualized instruction to meet his unique educational needs. During the current academic year (2016/17), the student receives direct instruction in a and he is supported by a . At , the student also receives the following related services:
;
,
; and
(R. 111-202; Exs. P-E, P-H at 31, P-I, P-J, P-K, P-L, P-M,
P-N).
E. Relevant Equities
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C.
v. V oluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.
Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W . v. New Y ork City D ep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y.
2009); Thies v. New Y ork City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V . v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New Y ork City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V .P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v.
Clarkstow n Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense. ” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch.
Dist. v. A m y N ., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See
Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir.
2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V . v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at for the 2016/17 school year. In a letter dated August 17, 2016, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at for the 2016/17 school year at public expense (Ex. SD-9). 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-1, SD-2), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition and related services at unreasonable (Exs. P-E, P-F, P-G), see Case No. 164096
Carter, 510 U.S. at 16.
F. Transportation
The parents request the provision of transportation services for the student to and from her nonpublic school (Ex. P-A).
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); 34 C.F.R. §§
300.34(a), (c)(16). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." N.Y.
Educ. Law §§ 4401(1), 4402(4)(a); see N.Y. Educ. Law § 4401(2); 8 NYCRR § 200.1(ww). Transportation as a related service can include travel to and from school and between schools; travel in and around school buildings; and specialized equipment such as special or adapted buses, lifts, and ramps. See 34 C.F.R. § 300.34(c)(16). Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. See A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-061 at 13 (SRO July 27, 2015). The nature of the transportation required for a particular student depends upon the student's unique needs, and it must be provided in the LRE. See 34 C.F.R. §§ 300.107, 300.305. If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the school district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg.
46,576 (Aug. 14, 2006); see also 8 NYCRR § 200.1(ww). Safety procedures for transporting students are primarily determined by state law and local policy. See Letter to
McKaig, 211 IDELR 161 (OSEP 1980).
According to a guidance document, the CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate."
See Transportation for Students with Disabilities (VESID March 2005), av ailable at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans .pdf. Other relevant considerations may include the student's age, ability to follow directions, ability to function without transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. See Donald B., 117 F.3d at 1375;
M alehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 (D.S.D. 1997)). When reviewing the transportation provisions made for a student by a school district, the relevant question
"is whether the transportation arrangements [the district] made for [the student] were appropriate to his needs." See A pplication of a Child with a Disability , Appeal No. 03-
054 (SRO July 14, 2003).
The evidence contained in the hearing record reflects that the student requires transportation services, as a related service, in order to benefit from the education he receives at his nonpublic school. The student is . He is unable to . In an
September 1, 2016 , the student’s
treating physician stated that the student requires:
a ; and
limited (Ex. P-O). The staff
recommended similar accommodations in their IEP for the student (Ex. P-
H at 31). The DOE shall be ordered to provide the student with the recommended transportation accommodations and services.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim for reimbursement and/or direct payment of the student’s tuition to, and related services costs at, for the 2016/17 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 2016/17 school year, and shall directly pay the private school for any and all outstanding costs, including tuition, related services and costs, associated with said placement;
The parents’ claim for transportation is GRANTED; and within thirty
(30) days of its receipt of this Order, the DOE shall provide the student with transportation accommodations and services of: adequate a ; and no more than ; and, within thirty (30) days of submission of adequate proof-of-payment, shall reimburse the parents for private transportation costs which they may have incurred; and
Within thirty (30) days of its receipt of this Order the CSE shall initiate a evaluation of the student, shall arrange for the student to be supplied with shall change the student ’s educational classification and shall revise the student’s IEP to include a .
Dated: February 9, 2017
JEFFREY SCHIRO, 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
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 10/27/16, 12 pgs.
B. Letter from Parent, 7/15/16, 1 pg.
C. Quarterly Progress Report, 10/28/16, 13 pgs.
D. Class Schedule, 9/6/16, 1 pg.
E. Related Service Provider Affidavits, various dates, 4 pgs.
F. Tuition Contract, 8/31/16, 4 pgs.
G. Tuition Affidavit, 9/30/16, 1 pg.
H. Individualized Education Program (IEP), 8/17/16, 31 pgs.
I. Evaluation, 8/3/16, 8 pgs.
J. Evaluation, 8/3/16, 4 pgs.
K. / Evaluation, 8/11/16, 9 pgs.
L. , 8/3/16, 12 pgs.
M. Letter from , , 8/15/16, 1 pg.
N. Program Description, 7/5/16, 47 pgs.
O. Request for Accommodations, 9/1/16, 1 pg.
P. DOE Evaluation, 8/4/16, 7 pgs.
Q. School Year Calendar, 2016/17, 1 pg.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 11/18/15, 21 pgs.
2. Individualized Education Program (IEP), 10/5/15, 21 pgs.
3. Notice of Committee on Special Education (CSE) Meeting, 9/28/15, 3 pgs.
4. Notice of Committee on Special Education (CSE) Meeting, 11/17/15, 3 pgs.
5. Prior Written Notice (PWN) of Recommendation, 10/22/15, 4 pgs.
6. Prior Written Notice (PWN) of Recommendation, 3/3/16, 4 pgs.
7. Request for , 10/1/15, 2 pgs.
8. Student Progress Report ( / ), 6/9/15, 3 pgs.
9. , 8/17/16, 1 pg.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 1/6/17, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Student with a disability means a student with a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. 8 NYCRR § 200.1(zz).
[3] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). B. Classification The parents contend that the student was denied a FAPE, in part, because the
[8] NYCRR § 200.1