NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
IHRS Case Number: 501732
Student Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearings: April 19, 2017
April 28, 2017
June 5, 2017
June 8, 2017
August 10, 2017
September 27, 2017
Actual Record Close Date: February 12, 2018
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 19, 2017
For tge Stude,n,t: ESQ., Attomey
Mother
-., Father For the Ois11·ict: ESQ., Attorney Oireetor of Special Education & Student Sen·ic-es, Guida.nee Counselor an of Student5 • High School Psychologist (retired)
NAMES AND TITLES Of PERSONS WHO APPEARED ON APRIL 28, 2017
SQ.,. Attorney — Student
ESQ., Attorney — District
Director of Special Education & Student Services — District
• High School Principal — District
Middle School Psychologist — District
Middle School Assistant Principal — District
• igh School Counselor — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 5, 2017
ESQ., Attorney inical P.sycholo ist, Counselor, ESQ., Attorney Director of Sp~cial Education & Student Services igh School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2017
ESQ., Attorney, ESQ., Attorney
Director of Special Education. & Student Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10 1 2017
ESQ., Attorney — Student
Clinical Director/Primary Therapist, — Student
Clinical Psychologist — Student
ESQ., Attorney — Student
irector of Special Education & Student Services — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2017
xecutive Director, — Student
ESQ., Attorney — District
Director of Special Education & Student Services — District
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 November 11, 2016. The complaint alleges child find violations in the 2014/15, 2015/16, and 2016/17 school years and seeks evaluation and classification of the student, compensatory education services relating to the 2014/15 and 2015/16 school years, and placement at the , as well as reimbursement for costs associated with unilateral placements, made during the 2015/16 and 2016/ 17 school years (Exs. SD-1, SD-2). 1 When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program ("IBP"), 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)(l)(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. §§ 122le-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
1References to the hearing transcript are noted as "R." References to exhibits admitted into evidence are noted as "Ex." 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.S(i)(l); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§
300.503(a)(l )-(2). 300.507(a)(l ). An impartial heating officer ("I.HOH) 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(t)(2)(A); (h)(l)-(3); 34 C.F.R. § 300.52 l(a)(l)-(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 of the resolution session period. See 34 C.F.R.
§§ 300.51 0(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 subsequently appeal to a State Review Officer ("SRO"). See N.Y.
Educ. Law§ 4402(2); see also 20 U.S.C. § 1415(g)(l); 34 C.F.R. § 300.514(b)(l); 8 NYCRR §
200.S(k).
II. PROCEDURAL HISTORY
On November 14, 2016, I was appointed by th School District (the "District") to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). In a letter to the parties dated December 7, 2016, I disclosed information regarding my prior professional background and advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO
n. In a letter dated April 7, 201 7, counsel for the District answered the complaint by asserting: that there was not basis for a referral of the student to the CSE, that the - was and is an unnecessary and inappropriate placement for the student, and that the parents failed to provide timely and lawful notice to the District of their intent to unilaterally place the student in a residential school at public expense (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5).
Hearings in this matter were thereafter held on: April 19, 2017; April 28, 2017; June 5, 2017; June 8, 2017; August 10, 2017; and September 27, 2017 (R. 1,229,401,717,890, 1093;
Bxs. JHO-V, IHO-VII, IHO-JX, IHO-X!D.[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.S(j)(S)(v).
III. FACTUAL BACKGROUND
At the time of the November 11, 2016 due process complaint, the student was sixteen (16)
years old and has been diagnosed with a Disorder, and ~ i s o r d e r s , an isorder, a Disorder in
Problems (Exs. SD-1 at 39, P-W at 3, P-Y; P-Z at 1).
The student was admitted to on May 24, 2016 (Exs.
P-DD at 1, P-EE at 1, P-FF at 1). Immediately upon her discharge f r o m _ , on or about September 2, 2016 (Ex. P-U), she was enrolled in Ex. P~Y), and remained there throughout the 2016/17 school year (Ex. IHO-XX at 7). The student's eligibility for special education and related services as a student with a disability is a component of the parties' dispute in this hearing (Bxs. SD-1, SD-2).[3] See 34 C.F.R. § 300.S(c); 8 NYCRR § 200.l(zz).
The student attended the in the two (2) years prior to her enrollment in the District's schools in the 2013/14 school year (R. 723; Ex. SD-10). With the exception of math, the student's mother did not believe that the student had an educational disability prior to the time that she started attending the District's schools (R. 778-779).
a guidance counselor at the District's middle school, testified under oath at the hearing that during the 2013/14 school year, the student was part of her eighth grade caseload (R. 59-60, 62-63). Upon being assigned to her caseload contacted the student's parents and arranged for a tour of the middle school. learned that the student had two (2) friends who where attending the middle school and tried to schedule the student in classes with her friends (R. 64). At that time, the eighth grade was divided into two (2)
instructional teams of approximately 125 students each stated that she advised the instructors on the student's team that the student was new to the middle school and that they should monitor her adjustment to the middle school (R. 65-66). ecalled that, as was typical of students coming in from private schools, the student experienced some difficulty in math. The student was therefore given math academic intervention services ("ATS") for additional support (R. 66).
stated at the hearing that middle school response to intervention ("RTI")
and student support teams met during the 2013/14 school year to discuss students who may be in need of additional supports (R. 75-76). The student had been discussed at student support team meetings during her eighth grade, with one of the interventions put into place being a "restricted hall pass" requiring that staff members notify the main office if the student was in the hallways
(R. 77). the middle school Dean of Students, testified that the things that caused the student to be discussed at the student support team meetings largely involved disciplinary issues for which there were general education supports available (R. 120-121, 129-
130; Ex. SD-14).
testified that, in her discussions with the student's mother, she had been advised that the student appeared "angry" at home (R. 88). Knowing that the student's mother was very sick, and believing that the student's reported anger may have been related to feeling about her mother's illness (R. 73-74, 8 7 ) , ~ e d to speak with the student, but the student's wouldn't "open up" to her (R. 71). As a result recommended to the student's mother than they consider private counseling and described a counseling program at the high school called
(R. 69-70, 89-90; Ex. SD-12). The student's mother advise that the student had been seeing a private counselor but that those sessions were discontinued. The student's father met with and advised her that they did not want to enroll the student in the
- p r o g r a m but would arrange for the student to speak to another private counselor (R.
73). ontinued to be in regular communication with the student's mother throughout the 2013/14 school year (R. 80).
a school psychologist at the middle school, testified that he met with the parents in or about March 2014 to provide them with information regarding private counselors
(R. 296). Of the suggested counselors, understood that the parents c h o s e -
- v h o had previously worked at both the middle school and high school (R. 297). -
- a w the student on a temporary basis (about five-to-six times) while the parents made arrangements for the student to see a private counselor outside of school (R. 297-298). -
- . p o k e with student both individually and in a group of two students, about her changing group of friends (R. 298-299, 304). onfirmed that it was not unusual for him to provide counseling to regular education students in school (R. 298).
The student passed her eighth grade classes and advanced to ninth grade at the high school for the 2014/15 school year (R. 791). - e high school principal, testified that the student attended the high school during the 2014/15 and 2015/16 school years. In her first year at the high school (2014/15), the student had a number oflargely minor disciplinary infractions (Ex. SD-14 at 1-2). estified that in her experience, it was not uncommon for high school students to make poor choices and it was the school's responsibility to help such students address such choices and move on (R. 249-250, 252-254). -estified was not uncommon for a general education student (R. 260-261, 411). Such support was intended to provide the student with a "safe place" as she transitioned into ninth grade (R.412). testified that she met with the student's mother prior to the start of atschool (R. 421-423). The mother shared family history, including the fact that the student was
- t h e fact that the student was continuing to receive substance abuse treatment
~ d counseling from (R. 413-414). It was decided thatllllllwould provide some school-based counseling and stay in touch with the parents and staff a t rovided school-based counseling to the student approximately nine (9) times during the first semester, including two (2) sessions involving the student's mother (R. 421), talking about such things as different social-emotional issues, disciplinary issues and matters raised by teachers or her mother (R. 415).
ecalled an incident that occurred
on June 18, 2015 following the student's completion fo the English Regents examination in the gym. After handing in her exam, she was advised by a teacher that her name was not on the exam. The student responded by telling the teacher to "go fuck yourself' and by leaving the building without permission (R. 250-252; Ex. SD-14 at 1). A five (5) day suspension, to be served in September, was imposed.
Over the summer of 2015, the parents requested that the District's new superintendent intervene regarding the five (5) day suspension that the student was to serve in September (R.
257-258). On the second or third day of the 2015/16 school year, a meeting was held w i t h - the high school dean, the school psychologist, the parents, the student, and an advocate. At this meeting, the parents presented~ith a letter from a licensed mental health counselor who requested that the student have an "alternate consequence" (other than an out-of-school suspension) (Ex. SD-3). The student ultimately served the five (5) day suspension and thereafter returned to school (R. 258, 261).
- and testified that the student behaved and functioned well in school at the beginning of the 2015/16 school year (her tenth grade) as evidenced by a decline in disciplinary referrals (R. 261-262, 330, 335; Ex. SD~14 at 1-2). The student's mother also acknowledged that there the disciplinary referrals had "decreased significantly" (R. 818).
testified that she had been the student's school counselor for the tenth grade (R. 359). In that rol~worked with the student's teacher to ensure that the student's return from the five (5) day suspension was not disruptive. tated that the student's mother reported to her that the student was receiving mental health treatment privately
(R. 364).
The student's tenth grade school year ended after an April 28, 2016 incident in which she was apparently under the influence of some type of drug, threatened staff members and struck the School Resource Officer (R. 267-269; Exs. SD-14 at 1, 72-77). This incident resulted in an out of-school suspension and a scheduled superintendent's hearing which never took place because the parents withdrew the student from school (R. 270). At the time the student left school, she was passing all of her classes (R. 271-273; Ex. SD-ll at 4).
The District was advised of the student's placement a t - o n June 15, 2016 (R. 179,
820) and this hearing later ensued (Ex. SD-1 ).
IV. POSITIONS OF THE PARTIES
A. School District
The hearing evidence does not support the parents' child find claims. The parents have failed to demonstrate that either of the private schools for which tuition reimbursement is sought were appropriate for the student. The relevant equities do not support an order of tuition reimbursement or any other relief (R. 35-46; Exs. SD-2, IHO-XIX).
B. The Parents
The District failed to provide the student with a free appropriate public education for the 2014/15, 2015/16, and 2016/17 school years. The District failed to fulfill its child find obligations and identify the student as having either an emotional disturbance or a learning disability.I Both - a n d - w e r e appropriate placements for the student. The parents are entitled to tuition reimbursement for their unilateral placements for the student and the student is entitled to compensatory additional services to remedy the denial of appropriate educational services (R. 46-56; Exs. SD-I, IHO-XX).
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: (1) to ensure that students with disabilities have available to them a free appropriate public education ("F APE") that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. §
1400(d)(l)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Seit v. Rowley, 458 U.S. 176, 206 ..07 (1982), [4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.
See Roivley, 458 U.S. at 206-07; TAf. v. Cornrvalf Cent. Sch Dist., 752 F.3cl 145, 151, 160 (2d Cir. 2014); FlC v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June
24, 2013); R.E v. New York City Dep'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 York City Dep't of Educ., 685 FJd
217,245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir, 2005).
m[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."' Walczak v.
Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247,253 (2d Cir. 2009). The
Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" Endrew F v. Douglas Cty. Sch. Dist. RE-I, 580 U.S._, 137 S. Ct 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's TEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually not/ see 694 F at 190~9 l, the Court has also explained that not all procedural enors render an IEP legally inadequate under the IDEA, Af.H, 685 F.3d at 245;
v. Bd. of Educ. Chappaqua Cent. Sch. Dist., 553 F.3d I 65, 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, a:n administrative otncer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student1s right to a F APE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a F APE to the student; or (c) caused a deprivation of educational be.nefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.S(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. qfEduc., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), ajfd, 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), affd, 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. §
14 l 5(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." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Endrew Ct at 100 J • The statute ensures an
11
appropriate 11 education, "not one that provides everything that might be thought desirable by loving parents:' See f,Valczak, 142 F.3d at l (quoting Tucker v. Bay Shore Union 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 l 89~ 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce proh,ress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement.m See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also TP., 554 F.3d at 254; P. v. Newington Bd of Educ., 546 FJd 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at* 15. The IEP must be "reasonably caJculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct at 1001 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"); 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. l 14(a)(2)(i),
300.l 16(a)(2); 8 NYCRR §§ 200.l(cc), 200.6(a)(l); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d l 05, 108 (2d Cir. 2007); Walczak, 142 FJd at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), ajfd,
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); Patskin v. Board 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.K §
300.320(a)(l); 8 NYCRR § 200A(d)(2)(i); Tar/owe 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 § 200A(d)(2)(v).
The burden ofproof is on the school district during an impmiial 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 York City Dep 1t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Child Find/Referral to CSE
The parents assert that the District violated its child find obligations (Exs. SD-I, IHO
XX). The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. See Handberry v. Thompson, 446 F.3d 335, 347-48 (2d Cir.
2006); E.T. v. Bd. of Educ., 2012 WL 5936537, at* 11 (S.D.N.Y. Nov. 26, 2012); A.P. v.
Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), affd, 370 Fed. App'x 202 (2d Cir. Mar. 23, 2010); see also 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111; 8 NYCRR §§ 200.2(a)(1 ), (7). The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify; locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services. 11 20 U.S.C § 1412(a)(3)~ 34 CF.R. §
300J 11 (a)(l )(i); Forest Grove, 557 U at 245; E.T., 2012 WL 593653 7, at * 11 · see also 20 U.S.C § 1412(a)(lO)(A)(ii); 8 NYCRR § 200.2(a)(l), (7); New Paltz Cent. Sch Dist. v. St.
Pierre, 307 F. Supp. 2d 394,400 n.13 (N.D.N.Y. 2004). The "child find" requirements apply to "children who are suspected of being a child with a disability ... and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. § 300.1 l l(c)(l ); see 8 NYCRR § 200.2(a)(l), (7); D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); JS. v. Scarsdale
Union Free Sch. Dist., 826 F. Supp. 2d 635,660 (S.D.N.Y. Nov. 18, 2011). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. See 34 C.F.R. § 300.11 l(a)(l); 8 NYCRR § 200.2(a)(l), (7).
Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the school district evaluate their child. See Reid v. District of Columbia, 401 F .3d
516, 518 (D.C. Cir. 2005) (noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction").[5] A school district's child find duty is triggered when the school district has "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability." See JS., 826
F. Supp. 2d at 660, New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13. Additionally, the "standard for triggering the Child Find duty is suspicion of a disability rather than factual knowledge of a qualifying disability. 11 Reg'! Sch. Dist No. 9 Bd. v. Afr. and lvfrs.
2009 WL 14064, at* 12 (D. Conn. Aug. 7, 2009). To support a finding that a child find violation has occurred~ "the [d]istrict must have 'overlooked clear signs of disability' or been
1 negligent by failing to order testing,' or there must have been 'no rational justification for deciding not to evaluate"' SeeJ.S., 826 F. Supp. 2d at 661, quoting Bd. c~fEduc. v. L.M., 478 F,3d 307,313
(6th Cir. 2007); see also A.P., 572 F. Supp. 2d at 225.
Related to child find is the referral process. State regulation requires that a student suspected of having a disability "shall be referred in writing'' to the chairperson of the district's
CSE--or to a "building administrator" of the school in which the student attends-for an "individual evaluation and determination of eligibility for special education programs and services" See 8 NYCRR § 200.4(a).[6] If a "building administrator" or 11 any other employee" of a school district receives a wiitten request for referral of a student for an initial evaluation, that individual is required to immediately forward the request to the CSE chairperson and the school district must, within ten ( 10) days of receipt of the referral, request the parent's consent to initiate the evaluation of the student. See 8 NYCRR §§ 200.4(a)(2)(ii), (a)(2)(iv)(a), (a)(3)-(a)(5); see also 34 C.F.R. § 300.300(a). State regulation also provides that, upon receiving a referral, a building administrator may request a meeting with the parent and the student (if appropriate) to determine whether the student would benefit from additional general education support services as an alternative to special education, inc1uding speech-language services, AIS, and any other services designed to address the learning needs of the student. See 8 NYCRR § 200.4(a)(9). Any such meeting must be conducted within ten (10) school days of the building administrator's receipt of the referral and must not impede the CSE from continuing its duties and functions. See 8 NYCRR §§ 200.4(a)(9)(iii)(a)-(b).
In this case, the issue presented is whether, upon the facts presented, the student should have been referred to the CSE because there was reason to suspect a disability and reason to suspect that special education services may be needed to address that disability. For the reasons set forth below, I find that the District met its child find obligations with respect to this student.
1. 2013/14 School Year
testified that the middle school had a child study team ("CST") at which students who needed or were suspected to need special education services were discussed. The student was not referred to the CST during the 2013/14 school year (her eighth grade) a n both testified that staff had not expressed to them at any time during the 2013/14 school year a belief that the student should be referred to the CSE (R. 68-69, 120).
Neither no believed that a CSE referral had been warranted during the 2013/14 school year (R. 80-82, 120-121). - f u r t h e r stated that the student's eighth grade disciplinary issues did not suggest a need for special education (R. 129-130; Ex. SD-14).
The student also passed all of her eighth grade classes (Ex. SD-11 at 2).
2. 2014/15 School Year
None of the educators who worked with the student during the ninth grade believed that she needed to be referred to the CSE. testified that she coordinated with middle school staff regarding incoming ninth grade students int eh 2014/15 school year (R. 315-317). In the course of that meeting, learned that the student had received a number of disciplinary referrals in the eighth grade. However, she did not learn anything suggesting that the student may be in need of special education services (R. 317).
estified that the child find procedures in place at the high school started at the classroom level. When a student was identified as struggling in a particular area, the next step was to involve the school counselor (or assistant principal), who then consulted with the student's team of teachers. In such cases, teams would meet with the student and develop a plan to address the area of concern. Child find sources at the high school included CST, R TI, a learning center and intervention through building-level administrators (R. 237-240). - c r e d i b l y testified that there was nothing concerning the nature of the discipline referrals, or concerning the fact that the student has served twelve (12) days of in-school and/or out-of-school suspension, that made her conclude that there should have been a CSE referral (R. 249). concurred that there was nothing about the ninth grade disciplinary rcfe1rnls that caused her to believe that the student should have been referred to the CSE (R. 322). also stated that there was nothing about the student's curing a staff member after the English Regents exam on June 18, 2015 which caused her to believe that the student was in need of special education services (R.
328). In addition, both - a n d testified that they received no reports from any of the student's teachers, counselors, or administrative staff indicating a belief on their part that the student needed to be referred to the CSE (R. 245-247, 324-325). Moreover, indicated that she was unaware of any private counselor expressing the view that the student needed to be considered by the CSE (R. 248).
- c r e d i b l y testified that, based on her 28 years of experience as a school counselor, the information that she obtained during the course of school-based counseling of the student did not justify a CSE referral (R. 416-41 7). In f a c t , _ testified that no such referral was warranted (R. 424~425) and that no staff member or private therapist had shared a contrary opinion with her (R. 418, 426). S i m i l a r l y , ~ h o was a prior BOCES employee and who had previously referred students to the CSE, did not believe that she needed to be so referred
(R. 300-302).
For her ninth grade, the student passed all courses with the exception of algebra (an area ofweakness) and physical education in the second semester (Ex. SD-11 at 3).
3. 2015/16 School Year
The evidence contained in the hearing record docs not establish a basis for the District to have initiated a referral of the student to the CSE during the 2015/16 school year.
estified that she did not receive any communications from any of the student's private providers during her tenth grade school year opining that the student should be referred to the CSE (R. 263-264). estified that there had been nothing about the number or nature of the disciplinary referrals that the student received in tenth grade which caused her to believe that the student should be referred tot he CSE (R. 330-331 ).
a school psychologist at the high school, testified that no staff members had communicated with him during the 2015/16 school year a belief on their part that the student should be referred tot he CSE (R. 142, 153-154). estified that none of the student's teachers had communicated to her a belief that the student needed to be referred to the CSE (R.
361-362). also testified that she had numerous communications with the parents during the course of the school year and that at no time did the parents say anything suggesting a belief on their part that the student needed special education support (R. 362-364). Lastly, no teachers, staff or private providers referred or otherwise suggested that the student be referred to the CSE at any point during her tenth grade school year (R. 264-265, 336-337).
the District's Director of Special Education and Student Support Services, testified that her office received a CSE referral relating to the student on September 17,
20 l 5, which was the first and only referral that had been submitted with respect to the student (R.
165, 169, 177-178; Ex. SD-4). In accordance with District procedures at that time, office prepared an "initial referral packet" consisting of, among other things, a letter to the parents, a special education parent guide, a sheet detailing the required testing, a request for consent and a prior written notice, and forwarded i t t o ~ . 170-175; Ex. SD-5).
xplained that this process was used so tha ould assist the parents in navigating what could otherwise be an overwhelming process (R. 175).
- e s t i f i e d that upon his receipt of the initial referral packet, he transmitted it to the parents (R. 650-651, 661; Ex. SD-5). ~ e n called the parents and spoke to the student's father, and set up a time for him to come in to discuss the procedure for processing a CSE referral (R. 145). Toe student's father met with n September or October 2015 for approximately forty-five (45) minutes, at which time the testing process, the procedure and the possible outcomes were discussed (R. 146-148). credibly testified that at no time did he attempt to talk the father out of proceeding with the CSE referral (R. 146-14 7).
The student's mother recalled resenting them with a consent form listing the required evaluations (R. 815). The parents did not sign the consent form at the September or October 2015 meeting, but instead took it home to think about it (R. 149).
- t e s t i f i e d that her office followed up with s to the status of obtaining the parents' consent for the initial evaluation (R. 176). Neither parent ever signed the consent form a n d _ . a s thereafter advised by phone that the parents did not wish to proceed with the referral and that, instead, they were going to take care of things themselves (R.
150-151; 815-816). hereafter mailed the student's father the form necessary to withdraw the CSE referral, which the father signed and returned (R. I 50-15 l; Ex. SD-6). . .
~ a n s m i t t e d the form to the District's special education office, which received on November 12, 2015 (R. 177; Ex. SD-6). There were no other CSE referrals submitted by the parents (R. 265, 817, 840).
On May 24, 2016, the student was enrolled in - in-by her parents (R. 179,
820; Exs. P-FF, P-GG at 1-15) at which time the District's child find obligation to the student ended. See Letter to Chamberlain, 60 IDELR 77 (OSEP Jun. 13, 2012) ("If a parent placed their child in a private school located in an LEA in another State, then the out-of-State LEA where the private school is located must conduct child find and, if determined eligible, include that child in the group of children whose needs must be considered for equitable services.") citing 34 C.F.R. §
300.131 (f) and 71 Fed. Reg. 46540, 4659 I (Aug. 12, 2006).
Alternatively, much of the information the parents rely on to advance their child find claims against the District was not known to the District (or even the parents) until after the student was removed from the District, enrolled i n - and evaluated b ~
- As of April 2016 (when the student left the District), District staff had no knowledge of the student's hospitalizations, of the student engaging in self-injurious behaviors off-campus, or that the student may have been a victim of an off-campus sexual assault (R. 80, 424, 796, 826; Exs. SD-I at 22, IHO-XX).
C. Eligibility
The parents assert that the District denied the student a F APE by failing to classify her while she attended the District's schools (R. 46-56; Ex.s. IHO-XX at 18). Contrary to the parents' assertion, however, I do not find that evidence contained in the hearing record reflects that the student possessed an educational disability during the relevant time period.
As a threshold matter, the parents have failed to explain how the District was to classify the student in the absence of their informed written consent to conduct an initial evaluation (Ex.
SD-5 at 62). See 8 NYCRR § 200.S(b)(l)(i). At no time during the school years at issue, did the parents authorize the District to conduct any evaluation of the student.[7] Although the parents initiated a CSE referral on September 17, 2015, they later withdrew that referral after receiving information about the referral process from (Exs. SD-4, SD-9). The student's father testified that he was aware that the student would have to be evaluated in order to determine whether she was eligible for special education (R. 666-667). The student's mother testified that she was aware that the reason the student had not been evaluated by the District in the fall of2015 was that she and her husband had not provided consent for such evaluations (R.
816-817).
Alternatively, while the parents testified during the hearing that they felt pressured b y .
- o withdraw their referral (R. 651-652), I give greater weight to the testimony of that at no time did he attempt to talk the father out of proceeding with the CSE referral because he had no reason to do so (R. 147~146).
1. Emotionally Disturbance
The parents contend that the District should have suspected that the student had an emotional disturbance. A student with an emotional disturbance must meet one or more of the following five (5) characteristics:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A generally pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
34 C.F.R. § 300.8(c)(4); see 8 NYCRR § 200.l(zz)(4).
Additionally, the student must exhibit one or more of the five characteristics over a long period of time and to a marked degree that adversely affects the student's educational performance
See id.; see also NC. v Bedford Cent. Sch. Dist., 2008 WL 4874535 (2d Cir. Nov. 12, 2008);
Maus v. Wappingers Cent. Sch. Dist., 2010 WL 451046 (S.D.N.Y. Feb. 9, 2010); A.J. v. Bd. of Educ., East Islip Union Free Sch. Dist., 2010 WL 126034 (E.D.N.Y. Jan. 8, 2010). While the term emotional disturbance includes schizophrenia, the term does not apply to students who are socially maladjusted, unless it is determined that they otherwise meet the criteria above. See 34 C.F.R. § 300.8(c)(4); 8 NYCRR § 200.l(zz)(4); New Paltz, 307 F. Supp. 2d at 398.
In this matter, the hearing record reflects that there was no reason for the District to suspect that the student was a student in need of special education. The District's administrators, counselors, and psychologists who testified at the hearing did not observe any behaviors in school that led them to suspect that the student might have a disability. Neither norllll elieved that a CSE referral had been warranted during the 2013/14 school year (R. 80-
82, 120-121). further stated that the student's eighth grade disciplinary issues did not suggest a need for special education (R. 129-130; Ex. SD-14). and_ credibly testified that there was nothing concerning the nature of the student's ninth grade discipline referrals (during the 2014/15 school year) that made her conclude that there should be a CSE referral (R. 249; 322). also credibly testified that the information that she obtained during the course of school-based counseling of the student during ninth grade did not justify a CSE referral (R. 416-417). also stated that there had been nothing about the number or nature of the disciplinary referrals that the student received in tenth grade
(2015/16 school year) which caused her to believe that the student should be referred tot he CSE
(R. 330-331 ).
Alternatively, while the parents cite the student's inappropriate behavior in school as indicative of an emotional disturbance, the hearing record reflects that the student's behavior improved in tenth grade with a marked decrease in disciplinary referrals (R. 261-262, 335; Ex.
SD-14 at 1-2). Statements of school counselors and psychologists at the hearing, that they were unsuccessful in establishing a therapeutic rapport with the student (R. 154, 299, 420), does not equate to an inability of the student to build or maintain satisfactory relationships to a marked degree. There was also no evidence offered that the student displayed in school a generally pervasive mood of unhappiness or depression while attending the District's schools.
2. Adverse Educational Impact
In order to be eligible for special education and related services, a student must not only have a specific physical, mental or emotional condition, but in most of the disability categories enumerated under the IDEA, such condition must adversely affect or impact upon a student's educational pcrf()rmancc to the extent that he or she requires special services and programs.
34 .R. §§ 300.8(a), (c); see also 8 NYCRR § 200,1 (zz). Assuming, arguendo, that the student met the initial criteria to be deemed eligible as a student with an emotional disturbance, a detennination must also be made regarding the second criterion for this particular disability category: whether the student's purported conditions or deficits adversely affected her educational performance.
Whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA, is an issue that has been left for each state to resolve. See JD. v. Paivlet Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000).
Although some states elect to establish further, more explicit definitions for these terms, often through regulation or special education policy, see, e.g., Mr. I. v. Maine Sch. Admin Dist. No. 55; 480 F.3d 1, 11 (l st Cir. 2007); JD., 224 F.3d at 66-67; Johnson v. Metro Davidson Cnty. Sch.
Sys., 108 F. Supp, 2d 906, 918 (M.D. Tenn. 2000), others do not and instead resolve the issue on a "case-by-case" basis, see, e.g., R.B. v. Napa Valley Un(fied Sch. Dist., 496 F.3d 932, 944 (9th Cir.
2007; Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1375-76 (8th Cir. 1996); Greenland Sch.
Dist. v. Amy N., 2003 WL 1343023, at *8 (D.N.H. Mar. 19, 2003). Cases addressing this issue in New York appear to have followed the latter approach, [8]
The hearing record supports the conclusion that the student was not eligible for special education and related services as a student with an emotional disturbance because the record does not demonstrate that the student's conditions or deficits adversely affected or impacted her educational perfomiance. The student passed all of her eighth !,rtadc classes and advanced on to ninth grade (Ex. SD-11 at 2). For her ninth grade, the student passed all courses (with the exception of algebra and physical education in the second semester) and advanced into the tenth grade (Ex. SD-11 at 3). At the time the student left the District's high school, in April 2016, she was passing all of her classes (R. 271-273, Ex. SD-11 at 4).
3 Learning Disability
The parents also contend that the District should have also suspected that the student had a specific learning disability ("SLD") in math. A learning disability, according to State and federal regulations, means "a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or w1itten, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations." 8 NYCRR §
200.l(zz)(6); see 34 C.F.R. § 300.8(c)(I0). A learning disability "includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental
"educational performance" and tbat it must be "assessed by reference to academic performance which appears to be the principal, if not only, guiding factor"); NC. v. Bedford Cent. Sch. Dist., 2008 WL 4874535 (2d Cir. Nov. 12,
2008) (holding that there is insufficient evidence that the student's educational performance was adversely impacted because the student did not fail any of his classes and his grade-point average (GPA) declined only nine points); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394,399 (N.D.N.Y. 2004); Eschenasy v. New York City Dep't of Educ., 604 F. Supp. 2d 639, 649-50 (S.D.N.Y. 2009) (finding that the SRO's conclusion that there was insufficient evidence of an adverse effect on the student's educational performance was "directly contradicted by [the student's] failing grades, repeated expulsions, suspensions, need for tutors and need for summer school); W.G. v. New York City Dep't of Educ., 801 F. Supp. 2d 142, 170-75 (S.D.N.Y. 201 l) (finding insufficient evidence that the student's "academic problems -which manifested chiefly as truancy, defiance and refusal to learn were the product of depression or any similar emotional condition"). aphasia, 11 8 § 200.l(zz)(6); see C.F.R. § 300.8(c)(10)(i). A learning disability "does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.u 8 NYCRR § 200.1 (zz)(6); see 34 C.F.R. § 300.8(c)(l O)(ii).
While many of the eligibility classifications require a detennination that a student's condition 11 adversely affects [the student's] educational performance," see 34 C.F.R. §§
300.8(c)(l)(i); (3), (4)(i); (5)-(6), (8), (9)(ii); (11)-(13); 8 NYCRR §§ 200.l(zz)(l)-(2), (4)-(5),
(7), (9)·(13), the learning disability classification does not contain a requirement expressed in such terms, see 34 C.F.R. § 300.8(c)(J 0); 8 NYCRR § 200.1 (zz)(6). Instead, consideration of whether a student has a specific learning disability must take into account whether the student achieves adequately for the student's age or meets State-approved grade-level standards when provided with learning experiences and instmction appropriate for the student's age, see 34 C.F.R.
§ 300.309(a)(l ); 8 NYCRR § 200.4U)(3), and either the student does not make sufficient progress or meet age or State-approved grade-level standards when provided with an RTl process, or assessments identity a pattern of strengths and weaknesses determined by the CSE to be indicative of a learning disability, see 34 C.F.R. § 300.309(a)(2); 8 NYCRR § 200A(j)(3)(i).
Additionally, a CSE may consider whether the student exhibits "a severe discrepancy between achievement and intellectual ability" in certain areas, including reading fluency skills; however, the "severe discrepancy" criteria cannot be used by school districts to determine if a student in kindergarten through the fourth grade has a learning disability in the subject ofreading. See 8
NYCRR § 200.40)(4).
Citing August 2016 psychological report, the parents assert that the student should have been classified with a SLD in math as her functioning in that area fell significantly below expectations based on her IQ (R. 463; Bxs. SD-1 at 22, IHO-XX at 18). The August 2016 psychological assessment report and testimony from - r e l a t e d to her July 5, 2016 assessment of the student, however, post-date the student's withdrawal from the District's schools in April 2016. The parents' reliance on report and testimony to support their claims of SLD eligibility are misplaced, as such evidence constitutes retrospective evidence that cannot be used to assess the appropriateness of actions or omissions of District personnel prior to the student's exit from the District's schools. See C.L.K. v. Arlington Cent. Sch. Dist., 2013 WL
6818376, *13 (S.D.N.Y. Dec. 23, 2013) (finding that "a substantively appropriate IEP may be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events ... that seek to alter the information available to the CSE"); Application of the Bd. cfEduc. of the Scarsdale Union Free Sch. Dist., Appeal No. 17-069 at 18 n.20 (SRO Oct. 18,
2017).
Alternatively, even if I were to consider eport and testimony on the issue of the student's pre-April 2016 eligibility for special education, I do not find it persuasive on that point, as her SLD diagnosis of the student primarily rested only on low average math substest scores from the WJAT-ill and the student's past difficulties in math (for which she had received
AIS) (R. 514-515, 519-520, 526-527).
D. Appropriateness of Private Programs
Notwithstanding my findings above, rejecting that parents' child find and eligibility claims, I will analyze the appropriateness of the appropriateness of the parents' unilateral placements of the student a t - a n
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 Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep 't of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y.
2011); S. W v. New York 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).
With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet her special education needs. See Frank G. v. Board 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; Walczak, 142 F.3d at 129. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s] choo I [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 a parent's unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." Id. at 364; see also Gagliardo, 489 F.3d at 115.
A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" Gagliardo, 489 F.3d at I 15, quoting Rowley, 458 U.S. at 188-89; see also Weaver 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, I find t h a t - a n d
~ e r e not appropriate programs for the student because they failed to provide her with specifically designed, individualized instruction to meet her unique educational needs and
1.-
sufficient support services to permit her to benefit educationally from that instruction.
The parents applied for the student's admission to - on May 22, 2016 and she began attending the program on May 24, 2016 (Ex. P-FF at 1). Clinical Director
0 did not identify the basis or bases, e.g., evaluations, interviews, etc., upon which - staff determined that the student would be appropriate for their program (R. 911-912,
977). 9 While - t e s t i f i e d that there was a "treatment plan" in place for the student at - • it was not produced or admitted into the hearing record. While the rogram offered seven half-credit courses in Language Arts, Environmental Science, Physical Education,
9 The only formal assessment of the student during her time a - was a psychological assessment conducted b - o n July 5, 2016, resulting in a report dated August 13, 2016 (R. 988-989; Ex. SD-I at 22). Food and Nutrition, Interpersonal Communications, Outdoor Education1 and Health and Fitness
(R. 914-915), no evidence was entered into the hearing of the student having taken, or receiving credit for, any such coursework.
~ e s c r i b e d - as a "nomadic" program, in which participants hiked every day from place-to-place, during which time they were exposed to "primitive living and camping and teaching survival skills" (R. 908). The program participants, ages thirteen-through-seventeen, were grouped together by gender in groups of eighHo-nine (R. 945). - did not know the age range of the program participants in the student's group. Groups were staffed by two-to four individuals who stayed with the program participants in the woods twenty-four (24) hours per day for two (2) weeks at a time "teaching universal principles of truth" (R. 909, 960-961 ).
Staff members received first aid training, CPR training and a fingerprint clearance (R. 965-966).
Primary therapists visited program participants twice weekly for individual and group therapy sessions (R. 960-961 ).
Alternatively, while tated in her August 2016 psychological report that the student "appears to be benefitting significantly from her treatment i n - ( E x . SD-I at 38),
I find that the progress notes generated b staff during the student's participation in that program instead reflect inconsistent progress by the student (Ex. P-GG).
2.
- enrolls students with emotional and learning disabilities, approximately fifty percent (50%) of which have IEPs (R.1109). There are approximately forty-five (45) student on campus at any given time, and class sizes are generally limited to six-to-eight students (R. I 126).
A l t h o u g h - is accredited to grant students transferable high school credits (R. 1122), the student's written academic plan a t - w a s not entered into the hearing record (R
1139-1140). Similarly, although a master treatment plan had reportedly been developed for the student, it was not entered into the hearing record (R. 1151-1152, 1154).
the Executive Director fo stated that he was not involved in the school's admission process or its decision to admit the student and was unaware ofwbat documentation, if any, was used to support the student's admission to (R.
1133~1136).~id not evaluate the student, did not provide any direct service to the student and did not observe the student in any academic classes or counseling sessions (R. 1134-
1138).
e student's counselor a t _ , met with her one time weekly for individual counseling and one time weekly for group counseling (R. 610-611 ).
- w a s unfamiliar with the student's past IEPs, her then-current academic program at or the residential component the program a t - ( R . 612, 621, 626-627).
E. Relevant Equities
The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; MC. v. Voluntown 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. § 14 l 2(a)(I0)(C)(iii); 34 C.F.R. § 300. l48(d); S. rV: v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. ~f
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 York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. VP., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), cdtd, 192 Fed. Appx. 62, 2006 WL2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten ( 10) business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a (FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." See 20 U.S.C. § 1412(a)(lO)(C)(iii)(l); 34 C.F.R. § 300.148(d)(l). 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 [F APE] can be provided in the public schools. 11 Greenland Sch. Dist. v.
Amy N, 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial ofreimbursement 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 do not support an award of tuition reimbursement and/or direct payment for the student• s unilateral placements at - an The parents did not give the District written notice of the student's unilateral placement a t - u n t i l after that the placement occurred. The parents applied for the student's admission to ~ n May 22, 2016 and she began attending the program on May 24, 2016 (Ex. P-FF at 1). The District was first advised of the student's placement a t - v i a an August 24, 2016 letter to in which counsel for the student and parents stated, "The family recently placed [the student] at Ex. SD-7 - emphasis added).
In that same letter, counsel stated "The family requests that the CSE agree to place [the student] i n - ] . Should the CSE elect not to do so, the family reserves the right to seek reimbursement for all costs associated with that program" (Ex. SD-7). It is unclear how the CSE could "agree" to the student's placement a t - b s e n t the parents' informed written consent to conduct an initial evaluation of the student, see 8 NYCRR § 200.5(b)(l)(i), or her initial receipt of public special education instruction and services, see 8 NYCRR § 200.5(b)(l)(ii), neither ofwhich were ever given.
Additionally, I find that the parents' reservation of rights to seek reimbursement to be insufficient notice of an actual unilateral placement of the student at public expense. See
Application of the Bd. of Educ. of the Ramapo Cent. Sch. Dist., Appeal No. 14-042 at 5 n.5 (SRO Dec. 31, 2014) ("A general reservation of rights, however, does not preserve arguments not specifically raised in the due process complaint notice."); see also T.G. v. New York City Dep't of
973 F Supp. 2d 320, (S.D,N.Y. 201 (holding that "catch-all allegations" in due process complaint notice are insufficient to bring an issue within the scope of an impartial hearing); IfA v, New York Dep 1t cf Educ., 841 F, Supp. 2d 605,611 (E.D.N.Y 2012)
(rejecting the proposition that a general reservation of rights in a due process complaint notice preserves additional procedural arguments later in the proceeding).
I have considered the parents' remains claims (Ex. SD-1) and have concluded that they are without merit
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
For the reasons set forth above~ the parents' claims that the District denied the student a free appropriate public education for the 2014/15, 2015/16 and 2016/17 school years are hereby
DENIED.
Dated: February 26, 2018
Isl Jeffrev .J Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to a State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plan to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall tile the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after senice of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available athttp://www.sro.nvsed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENT
A. [Reserved]
B. Letter t o - f r o ~ (records request), 9/13/16, 1 pg.
C. [Reserved)
D. [Reserved]
E. [Reserved]
F. [Reserved]
G. Letter to 6/15/16, 1 pg.
H. Letter to 8/22/16, 1 pg.
I. [Reserved]
J. [Reserved]
K. [Reserved]
L. [Reserved]
M. Tenth Grade Progress Reports, various dates, 11 pgs.
N. Ninth Grade Progress Report, 6/30/15, 1 pg.
0. [Reserved]
P. [Reserved]
Q. [Reserved]
R. [Reserved]
S. [Reserved]
T. [Reserved] u. [Reserved]
V. [Reserved] w. [Reserved]
X. [Reserved]
Y. [Reserved] z. [Reserved]
AA. [Reserved]
BB. [Reserved] cc. [Reserved]
DD. Letter from , 5/26/16, 1 pg.
EE. Letter from , 7/6/16, 1 pg.
FF. Letter from , 9/2/16, 2 pgs.
GG. -ndividual Progress Notes, various dates, 15 pgs.
SCHOOL DISTRICT
1. Due Process Complaint w/ enclosures, 11/11/16, 39 pgs.
2. Due Process Response, 4/7 /17, 2 pgs.
3. Letter to ·ct f r o m - 9/2/15, l pg.
4. Letter to from parents, 9/14/15, 1 pg.
5. Letter to parents f r o ~ w/ enclosures, 9/17/15, 101 pgs.
6. Withdrawal of CSE Referral, 11/9/15, l pg.
7. Letter t 8/24/16, l pg.
8. Records Request fro 11/9/16, 2 pgs.
9. E-mail to 12/2/16, 1 pg.
10. ecords, 6/2013, 3 pgs.
11. ranscript & Report Cards, various dates, 4 pgs.
12. •••••Brochure, undated, 4 pgs.
13. Attendance Records, various dates, 11 pgs.
14. Disciplinary Records, various dates, 77 pgs.
15. Personal History Form, 7/4/16, 6 pgs.
16. Parent History Form, undated, 7 pgs.
IMPARTIAL HEARING OFFICER
I. Letter to parties from IHO (appointment/disclosures/hearing rules), 12/7/16, 6 pgs.
II. Hearing Notice, 1/22/17, 1 pg.
III. Hearing Notice, 2/12/17, 1 pg.
IV. Confirmation of Extension, 3/8/17, 1 pg.
V. Hearing Notice, 4/2/17, 1 pg.
VI. Confirmation of Extension, 4/ 10/1 7, 1 pg.
VII. Hearing Notice, 5/1/17, I pg.
VIII. Confirmation of Extension, 7/3/17, 1 pg.
IX. Hearing Notice, 7/5/17, 1 pg.
X. Confirmation of Extension, 7/31 / 17, 1 pg.
XI. Confirmation of Extension, 8/23/17, 1 pg.
XII. Hearing Notice, 8/23/17, 1 pg.
XIII. Confinnation of Extension, 9/27/l 7, 1 pg.
XIV. Confirmation of Extension, 11/7/17, 1 pg.
XV. Confirmation of Extension, 12/12/17, I pg.
XVI. Confirmation of Extension, 1/9/18, 1 pg.
XVII. Confirmation of Extension, 2/7 I 18, I pg.
XIX. ~emorandum of Law, l 1/13/17, 33 pgs.
XX. Parents Memorandum of Law, 11/13/17, 28 pgs.
Footnotes
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the schedules of the parties' respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent's due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 379-380, 1068-1069, 1175-1176; Exs. IHO-lV, IHO-VI, IHO-VIII, IHO-X, IHO-XI, IHO-XIII • IHO-XVII).
[3] 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 I ' 1 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.l(zz).
[4] The term "free appropriate public education" means special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] However, a student may be referred by a student's parent or person in parental relationship. See 34 C.F.R. § 300.301 (b); 8 NYCRR § 200.4(a)(l )(i); see also 8 NYCRR § § 200.1 (ii)(l )-(4). State regulations do not prescribe the form that a referral by a parent must take, but do require that it be in writing. See 8 NYCRR § 200.4(a).
[6] A school district "must initiate a referral and promptly request parental consent to evaluate the student" to determine whether the student needs "special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction" in a school district's R TI programs. See 8 NYCRR § 200.4(a); see also 8 NYCRR § 100.2(ii).
[7] The parents have not argued that the District should have initiated an impartial due process proceeding to secure the necessary authorization to conduct an initial evaluation of the student in the absence of their consent. (Exs. SD-I, SD-5 at 62). See 8 NYCRR § 200.5(b)(3).
[8] See Corchado v. Board of Educ. of the Rochester City Sch. Dist., 86 F. Supp. 2d 168, 176 (W .D.N.Y. 2000) (holding that each child is different and the effect of each child's particular impairment on his or her educational performance is different); Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 297-98 (S.D.N .Y. 20 l 0) ( emphasizing that educational performance is focused on academic performance rather than social development or integration); see also C.B. v. Dep't of Educ., 2009 WL 928093 (2d Cir. April 7, 2009) (finding insufficient evidence that student has suffered an adverse impact on educational performance because the student continuously performed well and tested above grade level on the district's psychoeducational evaluation and a psychological evaluation); Muller v. East Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 (2d Cir. 1998); AJ v. Bd. of Educ., 679 F. Supp. 2d 299, 308-11 (E.D.N.Y. 2010) (noting the difficulty of interpretation of the phrase