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FINDINGS OF FACT AND DECISION
Case Number: 166414
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 19, 2018
Actual Record Closed Date: October 10, 2018
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2018
Advocate — Student
Parents
Principal – (via telephone) — Student
Special Education Teacher (via telephone) — Student
District Representative, CSE — DOE
— DOE
Unit Coordinator (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 advocates for the student and the parents in a due process complaint notice dated June 8, 2017. 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 fund, 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
On June 8, 2017, the DOE appointed me to hear this matter. See 8 NYCRR § 200.5(j)(3)(i). On February 26, 2018, I issued an Interim Order directing the DOE to fund several independent educational evaluations (“IEEs”) at public expense (Ex. IHO-I). 8 NYCRR § 200.5(j)(3)(viii). A hearing on the merits of the matter was thereafter held on March 19, 2018.[2] Appended to this decision are: a statement of appeal rights; a list of the 1 References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the June 8, 2017 due process complaint, the student was years old and has been diagnosed with autism (Exs. P-A at 2, SD-1 at 2). For the 2016/17 school year, the student was enrolled by his parents at the (Exs. P-A, P-E, P-H, P-I). The Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. P-A, P-C at 1, SD-1 at 1, SD-7 at 1, SD-8 at 1). See 34 C.F.R. § 300.8(c)(1); 8
NYCRR § 200.1(zz)(1).[3]
As a preschool student with a disability, the student attended site where he received nineteen (19) hours of special education itinerant teacher (“SEIT”) services using Applied Behavioral Analysis (“ABA”) methodology. The student presented with cognitive, receptive language and social/emotional/behavioral deficits. The student also exhibited delays in activities of daily living (“ADLs”), attention, and transitions (Ex. SD-1 at 2).
On July 3, 2014, the student was administered the Stanford-Binet Intelligence Scale – Fifth Edition. On that assessment the student received a Full Scale IQ score of 62 (1st percentile – Deficient range); a Non-Verbal IQ score of 64 (1st percentile – Deficient range); and a Verbal IQ score of 63 (1st percentile – Deficient range). On the Developmental Assessment of Young Children – 2nd Edition (“DAYC-2”), the student scored a 68 in cognition (2nd percentile – Very Poor); a 64 in social/emotional development (1st percentile – Very Poor); an 83 in physical development (13th percentile – Poor); and a 72 in adaptive behavior (3rd percentile – Poor). Lastly, on the Vineland Adaptive Behavior Scale, the student’s adaptive behavior composite score of 59 fell in the Mildly Deficient range (Ex. SD-1 at 1-2).
On February 24, 2016, the CSE convened to develop and IEP for the student for the 2016/17 school year. The CSE recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized school on a twelve
(12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling services, one time per week for sixty
(60) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; parent counseling and training, four (4) times per year for sixty (60) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; and individual speech/language therapy, four (4) times per week for thirty (30) minutes per session (Ex. SD-1 at 19-20, 22-23).
In a letter dated June 15, 2016, the DOE informed the parents that the student’s recommended program would be implemented at in Brooklyn (Ex. SD-8).
On July 5, 2016, the parents signed a contract for the student’s enrollment at the for the 2016/17 school year (Ex. P-F). In a letter dated August 19, 2016, the advocate for the student and parents advised the CSE that the parents was rejecting its proposed program for the student and would unilaterally place the student at the at public expense for the 2016/17 school year (Ex. P-E). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ request for tuition reimbursement and/or direct payment for the student’s unilateral private placement at the for the 2016/17 school year should be denied. The CSE offered the student a free appropriate public education in the least restrictive environment. The student’s private placement was not appropriate and the relevant equities mitigate against a reimbursement award.
B. The Parents
The DOE should also be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at the for the 2016/17 school year. The CSE failed to develop an appropriate educational program for the student. In contrast, the appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the (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); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
206-07 (1982).[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New 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 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling 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.'" 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). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. 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." Walczak, 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 Walczak, 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; Walczak, 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 Walczak, 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 Mrs. 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. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 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); 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.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where 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).
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 York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Proposed Public Program
The DOE failed to establish at the hearing that it offered the student an appropriate educational program reasonably calculated to enable the student to receive educational benefit.
There is no evidence contained in the hearing record of the CSE conducting an initial (Turning Five) evaluation prior to the February 2016 meeting. An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other "appropriate assessments or evaluations," as necessary to determine factors contributing to the student's disability. See 8 NYCRR § 200.4(b)(1). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. §§ 1414(b)(2)(A), (B); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Alternatively, while the February 24, 2016 IEP references a July 3, 2014 preschool psychoeducational evaluation (Ex. SD-1 at 1-2), as the DOE did not offer that evaluation for entry into the hearing record, I am unable to assess its sufficiency. Other than the July3, 2014 preschool psychoeducational evaluation, the February 2016 CSE apparently relied on an December 13, 2015 anecdotal progress report of the student’s classroom functioning to determine the student’s academic achievement, functional performance and learning characteristics (Exs. SD-1, SD-3).
The DOE, likewise, failed to offer any standardized assessment or evaluation of the student’s related services (speech, occupational and physical therapies) needs into the hearing record, and the February 2016 CSE again relied on anecdotal progress reports from the student’s providers to establish his then-present levels of functioning (Exs. SD1, SD-4, SD-5, SD-6).
Given the DOE’s failure to establish that the February 2016 CSE considered sufficient evaluative data about the student, as discussed above, the dearth of such information in the hearing record precludes meaningful review of the parents’ claims with regard to the sufficiency of the IEP’s description of the student’s academic, functional, and management needs or the appropriateness of the annual goals in the February 24, 2016 IEP. That is, given the above deficiencies with the DOE’s presentation of the information available to the CSE, I decline, after reviewing the entire record, to simply presume that the February 24, 2016 IEP included a full and complete description of the student’s needs or annual goals aligned with those needs. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 10-13 (SRO Feb. 25, 2014).
Although the February 2016 CSE determined that the student “requires handover-hand prompting for many tasks and . . . requires frequent tangible reinforcement and prompting strategies” (Ex. SD-1 at 2), no record or witness was produced by the DOE at the hearing to establish that the student would receive such instruction in the recommended 6:1+1 special class. At the hearing, a Unit Coordinator, identified two types of 6:1+1 special classes at the assigned school: a TEACCH class and a verbal behavior program. explained that the TEACHH class involves small group instruction while the verbal behavior program is a more intensive 1:1 type of program. was unable to articulate, however, which type of special class was recommended for the student (R. 51-54). Without such information, I am unable to assess the sufficiency of the recommended program (Ex. SD-1).
While the violations described above, standing alone or when considered individually, might not result in the denial of a FAPE, the aggregate effect of the violations in this case requires a finding that the student was denied a FAPE for the 2016/17 school year. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 15 (SRO Feb. 25, 2014).
C. Appropriateness of the Image Academy
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 his 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]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 Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (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 (Principal of (special education teacher), and the student’s parent, I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 58-154; Ex. P-H).
D. 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; M.C. 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. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. 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. 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 York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2016/17 school year. In a letter dated August 19, 2016, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the for the 2016/17 school year at public expense (Ex. P-E). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. SD-1, SD-2, P-C), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition and related services at the unreasonable given the severity of the student’s needs and services necessary to address those needs (Exs. P-F, P-H, P-I, P-J, P-K), see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parents’ claim for reimbursement and/or direct payment of the student’s tuition to, and related services costs at, the 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 the for the 2016/17 school year, and shall directly pay the private school for any and all outstanding associated with said placement.
Dated: October 11, 2018
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer JS:mv
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/8/17, 6 pgs.
B. Program Description, undated, 7 pgs.
C. Individualized Education Program (IEP), 2/24/16, 19 pgs.
D. Reply to School Location Letter, 9/20/16, 2 pgs.
E. Ten Day Notice, 8/19/16, 2 pgs.
F. Enrollment Contract, 7/5/16, 3 pgs.
G. Class Schedule, 2016/17, 1 pg.
H. Progress Report, 2016/17, 11 pgs.
I. Tuition Affidavit, 10/24/17, 1 pg.
J. Proof-of-Payments, various dates, 2 pgs.
K. Loan Agreement, 5/20/16, 1 pg.
L. Form 1040 U.S. Individual Tax Return, 2016, 2 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 2/24/16, 26 pgs.
2. CSE Meeting Minutes, 2/24/16, 3 pgs.
3. Special Education Teacher Progress Report, 12/13/15, 3 pgs.
4. Speech Progress Report, 2/22/16, 2 pgs.
5. Occupational Therapy Progress Report, 12/20/15, 2 pgs.
6. Physical Therapy Progress Report, 12/27/15, 2 pgs.
7. Prior Written Notice (Notice of Recommendation), 5/13/16, 4 pgs.
8. Prior Written Notice (Notice of Recommendation), 6/15/16, 5 pgs.
IMPARTIAL HEARING OFFICER
I. Interim Order, 2/26/18, 1 pg.
II. Confirmation of Extension, 8/14/17, 1 pg.
III. Confirmation of Extension, 9/13/17, 1 pg.
IV. Confirmation of Extension, 10/9/17, 1 pg.
V. Confirmation of Extension, 11/6/17, 1 pg.
VI. Confirmation of Extension, 12/13/17, 1 pg.
VII. Confirmation of Extension, 1/8/18, 1 pg.
VIII. Confirmation of Extension, 2/12/18, 1 pg.
IX. Confirmation of Extension, 3/9/18, 1 pg.
X. Confirmation of Extension, 4/9/18, 1 pg.
XI. Confirmation of Extension, 5/7/18, 1 pg.
XII. Confirmation of Extension, 6/19/18, 1 pg.
XIII. Confirmation of Extension, 7/5/18, 1 pg.
XIV. Confirmation of Extension, 8/13/18, 1 pg.
XV. Confirmation of Extension, 9/13/18, 1 pg.
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 availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-II - IHO-XXV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities or stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.