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FINDINGS OF FACT & DECISION
Case Number: 171029
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 6, 2019
July 15, 2019
Actual Record Close Date: | November 12, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 6, 2019
For the Student:
ESQ., Attorney
Legal Intern
parent
parent
For the Department of Education:
District Representative
Teacher Assigned (via telephone)
Teacher (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
July 15, 2019
For the Student:
ESQ., Attorney
Legal Intern
parent
parent
Director (via telephone)
For the Department of Education:
District Representative
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 originally requested by the attorneys for the student and the parent in a due process complaint notice dated November 17, 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 2017/18 and 2018/19 school years (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 (“JEP”), 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 8§ 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. 8§
300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).
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
‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 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. §§ 300.52 1(a)(1)-(4); 8 NYCRR §§ 200.5(G)(3)(v), (vii), (xil).
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 November 20, 2017, the DOE appointed me to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)G). On April 21, 2019, the parent filed an amended due process complaint (Ex. P-A). See 8 NYCRR § 200.5(i)(7). Hearings on the merits of the matter were thereafter held on June 6, 2019 and July 15, 2019.7 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(¥).
Il. FACTUAL BACKGROUND
At the time of the April 21, 2019 amended due process complaint, the student was seven (7) years old and has been diagnosed with an Autism Spectrum Disorder (“ASD”), an Attention Deficit Hyperactivity Disorder (“ADHD”) and a sensory modulation disorder (R. 132; Exs. P-A at 1, P-S, P-HH at 1). For the 2017/18 and 2018/19 school years, the student was enrolled by his parent at the in (Exs. P-A at 1, P-J, P-W, P-X).
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 8§ 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 at 1, P-Oat1,P- at1,SD-1 at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
The student received early intervention services to address developmental delays (R. 131; Ex. P-A at 1). During the 2015/16 school year, the student attended preschool at the *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 (R. 50-51, 188-189; Exs. IHO-I - IHO-XIX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
>4Autism 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 and 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 (“ ”) where he was enrolled in a 12:1+2 classroom and provided with related services of speech/language and occupational therapy (R. 133; Ex. P-A at 1). At , the student was described at creative, imaginative and helpful (Exs. P-HH at 1, P-II at 2).
Academically, staff noted attentional issues, poor recall and inconsistent performance, but he still learned to identify colors, shapes and numerical concepts (Exs. P-S at 1, P-II at 1-3, P-JJ at 2).
On April 5, 2016, the CSE convened to develop an IEP for the student for the 2016/17 school year, his kindergarten year. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of: group (2:1) occupational therapy, two (2) times per week for thirty (30) minutes per session; group (3:1) speech/language therapy, one time per week for thirty (30) minutes per session; and individual speech/language therapy, one time per week for thirty (30) minutes per session (Ex. P-II at 7-8, 11-12).
The student attended kindergarten at ( ) (R. 134). By the third week of school, the student began to exhibit problematic behaviors such as: not following directions, refusing to complete classwork, hiding under his desk, eloping from program, and physical aggression (R. 135). Academically, the student exhibited regression of learned skills and became socially isolated (R. 135-136; Ex. P-S at 1-2, P-GG).
In January 2017, an independent neuropsychological evaluation was conducted of the student to assess his then-current level of cognitive, adaptive and socio-emotional functioning.
On the WPPSI-IV, the student’s Full Scale IQ was in the borderline range (FSIQ = 72). The student’s performance on other neuropsychological measures revealed difficulties with language, NYCRR§ 200.1(zz)(1). visual-motor integration, learning and memory. Academic testing revealed his reading, spelling and math reasoning abilities were below grade level. Assessment of adaptive functioning revealed his difficulties with adaptability, activities of daily living, functional communication and social skills. Assessment of emotional and behavioral functioning revealed symptoms of depression, atypicality, hyperactivity, attention problems and anxiety. Findings from the GARS-
3 revealed symptoms associated with ASD. Recommendations included placement in a twelve month, highly structured, supportive classroom environment within a small school designed for students with ASD (Ex. P-HH at 1, 5-6).
On May 26, 2017, the CSE reconvened to develop an IEP for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class setting 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, one time per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; group parent counseling and training, one time per year for sixty (60) minutes; and individual speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P- at 11-12, 14-16).
In a letter dated May 31, 2017, the parent requested that the CSE reconsider its program recommendation for the student and defer his case to the DOE’s Central Based Support Team (the “CBST”’’) for placement in a State-approved nonpublic school (Ex. P-DD). The parent later met with school staff, on June 6, 2017, to discuss the issue, but the parent’s request for a CBST deferral was ultimately denied (R. 149).
In a letter dated June 23, 2017, counsel for the student advised the CSE that the parent was rejecting the student’s recommended public program and would unilaterally place the student at the for the 2017/18 school year at public expense (Ex. P-X). On July 21, 2017, the parent received a school location letter, dated July 18, 2017, assigning the student to at (Ex. P-V). Handwritten on the letter were the words, “September Placement,” although the student was mandated to receive a twelve-month program (Exs. P-V, P- at 11-12). The parent later visited the proposed public placement and determined that it was not appropriate for the student (R. 153).
On April 25, 2018, the CSE reconvened to develop an IEP for the student for the 2018/19 school year. The CSE again recommended that the student receive the majority of his instruction in an 8:1+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, one time per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; group parent counseling and training, one time per month for sixty (60) minutes per session; individual speech/language therapy, two (2) times per week for thirty (30) minutes per session; and group speech/language therapy, one time per week for thirty (30) minutes per session (Ex. P-O at 9-11, 13-15).
On or about June 9, 2018, the parent received a school location letter from the DOE assigning the student to an 8:1+1 class at ( ) in the (R.
166; Ex. SD-2). The parent visited the school on June 19, 2018 and determined that it could not meet the student’s unique needs and was not an appropriate placement for him (R. 186-186; Ex.
P-A). Ina letter dated June 22, 2018, counsel for the student advised the CSE that the parent was rejecting the student’s recommended public program and would unilaterally place the student at the for the 2018/19 school year at public expense (Ex. P-J). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claims for tuition reimbursement for the student’s unilateral placements during the 2017/18 and 2018/19 school year should be denied. The CSE recommended appropriate programs for the student during both school years which were reasonably calculated to provide the student with appropriate educational services in the least restrictive environment (R. 8-9).
B. The Parent
The DOE should also be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at the for the 2017/18 and 2018/19 school years.
The CSE failed to develop appropriate educational programs 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 (R. 56-60; 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); MH. 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 "[mJultiple 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 ‘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) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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; 4.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)G). 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, A458 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)G), 300.116(a)(2); 8 NYCRR 8§ 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)(1), (2)(G)(A); 8 NYCRR § 200.4(d)(2)(11), 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 — 2017/18 School Year The parent asserts that the DOE failed to identify a particular public school site for the student to attend instruction during the 2017/18 school year (Ex. P-A).
Initially, with respect to the notice of the assigned school, in general, the IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR§ 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013). Although federal and State regulations do not expressly state that a school district must provide a written notice to the parents in any particular format describing the "pricks and mortar" location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a school district's provision of special education services, the IDEA is clear such services must be provided to the student by the school district in conformity with the student's IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320. When determining how to implement a student's IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation. See K.L.A. v. Windham
Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082 (2d Cir. Mar. 30, 2010); T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir 2009); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).
However, although not explicitly stated in federal or State regulation, implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an the IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Tarlowe, 2008 WL 2736027, at *6 (stating that a school district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless must be shared with the parent before the student's IEP may be implemented. See Application of the New York City Dep’t of Educ., Appeal No. 14-083 at 13 (SRO Jan. 8, 2015).
Here, the hearing record reflects that as of the start of the twelve (12) month school year on July 7, 2017, the DOE had not offered the student a school placement. On July 21, 2017, the parent received a school location letter, dated July 18, 2017, assigning the student to at ( ) in the (Ex. P-V). Handwritten on the letter were the words, “September Placement,” although the student was mandated to receive a twelve-month program (Exs. P-V,P- at 11-12). There was no testimony offered of the routine office practice, if any, followed in the applicable CSE office relative to the mailing of such documents to the parent. I therefore find that DOE failed to mail the parent notice of where the recommended program would be implemented which impeded the student's right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student and 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).
C. Proposed Public Program — 2018/19 School Year
1. Predetermination
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. §
300.322; 8 NYCRR § 200.5(d). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. Sept. 23, 2015); A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 (S.D.N.Y. July 30, 2015); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. Aug. 19, 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents’ suggestions"). When determining whether a school district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP. See Cerra, 427 F.3d at 192.
Based on the credible testimony of both the parent and , I find that the April 2018 CSE denied the parent an adequate opportunity to participate in the development of the student’s IEP for the 2018/19 school year. Both the parent and credibly testified that when, at the beginning of the April 2018 meeting, the parent attempted to discuss the student’s needs, the chairperson “shut her down” and denied the parent the opportunity to discuss her child (R. 116, 164). A January 2018 update to the student’s March 2017 independent neuropsychological evaluation, which was provided to the CSE before the meeting, was not considered (Exs. P-S, P-HH). The parent stated that “the [April 2018] meeting was just very short and fast,” and at the end, the chairperson said the student would be placed in an 8:1+1 special class (R. 165). When the parent tried to object, the chairperson interrupted her, saying (in words or substance), “that’s what I’m recommending, and this meeting is adjourned,” and then hung up (R. 165).
2. Substantive Analysis
From the evidence contained in the hearing record, I also conclude that the proposed
8:1+1 special class program would not meet the student’s unique educational needs. The did not offer ABA, but rather “something like’ TEACCH, although none of the teachers were trained in TEACCH (Ex. P-J at 3). Several students in the proposed 8:1+1 classroom were non-verbal (Ex. P-S at 7). Classroom instruction in the proposed program was not designed to meet the needs of students with autism. There was no quiet area for the student to retreat to when overstimulated or dysregulated, nor any sensory gym (Ex. P-J at 3). During the parent’s observation of the proposed program, the teacher stated that when children in the class became overstimulated, they would be given a “sensory bottle” containing sand or allow to play with shaving cream (R. 167). The parent also observed the speech therapy room to be small, noisy and cramped (R. 167).
D. Appropriateness of the Given my finding that the DOE failed to provide the student with a FAPE during the 2017/18 and 2018/19 school years, I turn to the appropriateness of the parent’s private program.
With respect to the second criterion for an award of reimbursement, a parent 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, A489 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 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.” [d. 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-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of the parent and , 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 for which he derived meaningful educational benefit (R. 103; Exs. P-B, P-C, P-D, P-E, P-F, P-G, P-H, P-I, P-K, P-M, P-N, P-P, P-Q, P-T, P-U, P-AA, P-BB, P-CC).
At the , the student received ABA-based instruction in a 6:1+1 special class (R. 97). At least three-to-four times daily, the student worked individually with his classroom teacher or teaching assistant on word reading, writing, sentence formulation and math (R. 97-98). The student also received related services of counseling, occupational therapy and speech/language therapy while attending the (R. 101-102). The student made progress in class and in related services and his behaviors greatly improved (R. 104, 111). The student no longer eloped from program, was able to articulate his feelings, and demonstrated confidence in the learning environment (R. 112).
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. § 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); MV. 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)(D; 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 2017/18 and 2018/19 school years. In letters dated June 23, 2017 and June 22, 2018, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the for the 2017/18 and 2018/19 school years, respectively, at public expense (Exs. P-J, P-X). See 20 U.S.C. § 1412(a)(10)(C)aii)(1); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. P-O, P- _, P-II), see 20 U.S.C. § 1412(a)(10)(C)(i11), nor was the cost of the student’s tuition at the unreasonable given the severity of the student’s needs and services necessary to address those needs (Ex. P-W), see Carter, 510 US. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The parent’s claim for reimbursement and/or direct payment of the student’s tuition to the for the 2017/18 and 2018/19 school years is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent for all costs associated with the student’s unilateral private placement at the for the 2017/18 and 2018/19 school years, and shall directly pay the private school for any and all outstanding costs associated with said placement.
Dated: November 26, 2019
/s/ Jeffrey 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 the 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 the either party plans 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 file 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 service 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 at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Amended Due Process Complaint Notice/Impartial Hearing Request, 4/21/19, 7 pgs.
B Academic Annual Review, 5/13/19, 3 pgs.
C Social/Emotional Annual Review, 5/13/19, 3 pgs.
D Occupational Therapy Annual Review, 5/13/19, 3 pgs.
E Speech/Language Annual Review, 5/13/19, 3 pgs.
F Behavior Intervention Plan, 5/7/19, 6 pgs.
G Functional Behavioral Assessment, 5/7/19, 4 pgs.
H Academic Annual Review, 4/4/19, 3 pgs.
I Academic Annual Review, 12/5/18, 3 pgs.
J. Ten Day Notice, 6/22/18, 3 pgs.
K. Goals and Objectives, 2018/19, 3 pgs.
L. DOE Behavioral Intervention Plan, 4/25/18, 7 pgs.
M Behavior Intervention Plan, 4/25/18, 6 pgs.
N. Functional Behavioral Assessment, 4/25/18, 4 pgs.
O. DOE Individualized Education Program (IEP), 4/25/18, 18 pgs.
P Academic Annual Review, 4/23/18, 3 pgs.
Q. Occupational Therapy Annual Review, 4/23/18, 2 pgs.
R. Student Observation, 4/18/18, 2 pgs.
S. Psycho-educational Evaluation, 4/9/18, 10 pgs.
T Speech/Language Annual Report, 4/1/18, 3 pgs.
U. Social/Emotional Annual Review, 3/5/18, 2 pgs.
V. DOE School Location Letter, 7/19/17, 1 pg.
W. Parental Guarantee of Tuition, 7/12/17, 3 pgs.
X. Ten Day Notice, 6/23/17, 4 pgs.
Y. Behavior Intervention Plan, undated, 3 pgs.
Z. Progress Report, 8/2018, 8 pgs.
AA. New Student 30 Day Speech/Language Review, 8/14/17, 2 pgs.
BB. Occupational Therapy 30 Day Progress Report, 8/3/17, 2 pgs.
CC. 30 Day Review, 8/1/17, 2 pgs.
DD. Letter to ( ) from parent, 5/31/17, 1 pg.
EE. Letter to ( ) from parent, undated, 2 pgs.
Individualized Education Program (IEP), 5/26/17, 17 pgs.
GG. Email to. from parent, 3/19/17, 1 pg.
HH. Psychological Evaluation, 3/8/17, 10 pgs.
II. Individualized Education Program (IEP), 4/5/16, 13 pgs.
JJ. Psychological Evaluation Report, 4/4/16, 4 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 4/25/18, 25 pgs.
2. School Location Letter, 6/1/18, 2 pgs.
3. CSE Meeting Minutes, 4/25/18, 2 pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 2/5/18, 1 pg.
II. Confirmation of Extension, 3/1/18, 1 pg.
II. Confirmation of Extension, 4/3/18, 1 pg.
IV. Confirmation of Extension, 5/7/18, 1 pg.
V. Confirmation of Extension, 6/1/18, 1 pg.
VI. Confirmation of Extension, 7/5/18, 1 pg.
VIL. Confirmation of Extension, 8/6/18, | pg.
VII. Confirmation of Extension, 9/1/18, 1 pg.
IX. Confirmation of Extension, 10/5/18, 1 pg.
X. Confirmation of Extension, 11/4/18, 1 pg.
XI. Confirmation of Extension, 12/3/18, | pg.
XII. Confirmation of Extension, 1/2/19, 1 pg.
XIII. Confirmation of Extension, 2/1/19, 1 pg.
XIV. Confirmation of Extension, 3/3/19, 1 pg.
XV. Confirmation of Extension, 7/1/19, 1 pg.
XVI. Confirmation of Extension, 7/31/19, 1 pg.
XVII. Confirmation of Extension, 8/30/19, 1 pg.
XVIII. Confirmation of Extension, 9/29/19, 1 pg.
XIX. Confirmation of Extension, 10/29/19, | pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to 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 (R. 50- 51, 188-189; Exs. IHO-I - IHO-XIX). 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 and 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
[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.