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AMENDED FINDINGS O ACT AND DECISION
Case Number: 172668
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 13, 2018
Actual Record Closed Date: february 8, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
Hearing Officer’s Amended findings of act and Decision 2
NAMES AND TITLES O PERSONS WHO APPEARED ON AUGUST 13, 2018
or the Student:
, ESQ., Attorney
, Parent
, Parent
, Program Coordinator, (via te ephone)
[] , Reading Teacher, (via te ephone)
or the Department of Education:
, District Representative,
Hearing Officer’s Amended findings of act and Decision 3
JURISDI TION - OVERVIEW OF ADMINISTRATIVE PRO EDURES
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 february 23, 2018. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“ APE”) for the 2017/18 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 , and school district representatives. See N.Y.
Educ. Law § 4402; see a so 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C. .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. .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 a so 20 U.S.C. §§ 1415(b)(6)-(7); 34 C. .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 Hearing Officer’s Amended findings of act and Decision 4 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. .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. .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. .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 a so 20 U.S.C. § 1415(g)(1); 34 C. .R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PRO EDURAL HISTORY
The DOE appointed me to hear this matter on february 28, 2018 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on July 17, 2018 to clarify the hearing issues and set a date for the hearing (R. 1-5). See 8 NYCRR § 200.5(j)(3)(xi). A hearing on the merits of this matter was thereafter held on August 13, 2018.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FA TUAL BA KGROUND
At the time of the february 23, 2018 due process complaint, the student was
Hearing Officer’s Amended findings of act and Decision 5 years old and has been diagnosed with an attention deficit hyperactivity disorder (“ADHD”) (Exs. P-A at 3, P- at 1). The student attended the (“ ”) during the 2017/18 school year, which has not been approved by the Commissioner of Education 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 current eligibility for special education and related services as a student with an other health impairment is not in dispute in this hearing (Exs. P-A, P-I at 1). See 8
NYCRR § 200.1(zz)(10).[3]
The student presents with significant expressive and receptive language deficits, phonological deficits, emergent reading, writing and math skills, executive functioning deficits, difficulty with processing auditory information and poor pragmatic/social communication skills (Ex. P-L at 1). The student also presents with delays in the areas of fine motor skills, gross motor skills, handwriting, coordination, praxis and visual perceptual skills (Ex. P-M at 1).
During the 2016/17 school year, the student attended where he received individual education services program (“IESP”) services of special education teacher support services (“SETSS”) for fifteen (15) hours per week, individual occupational therapy (2x30) and individual speech and language therapy (4x30), but still struggled in Language Arts and mathematics (Ex. P- at 1).
In a letter dated July 5, 2017, the parents informed the DOE that they were no longer interested in “parentally placing” the student in a nonpublic school at their own expense with related services from the DOE. The Parents also stated in their letter that they believed the student required a full-time special education program in order to meet his educational needs. The Parents requested that the CSE convene to develop an IEP for the student for the 2017/18 school year. The Parents also informed the DOE that should it not provide an appropriate program and placement for the student, they would
Hearing Officer’s Amended findings of act and Decision 6 unilaterally place the student at for the 2017/18 school year at public expense
(Ex. P-B).
In response to the parents’ July 5, 2017 letter, the DOE conducted a psychoeducational evaluation of the student. On the Wechsler Intelligence Scale for Children – 5th Edition (“WISC-V”), the student achieved a full Scale Index score of 56
(.2nd percentile) placing his overall level of intellectual functioning in the Extremely Low Range (Ex. P- at 2, 6). On the Basic Reading Composite of the Wechsler Individual Achievement Test – Second Edition (“WIAT-II”), the student yielded standard scores within the Below Average range. The Math Composite yielded standard scores within the Low range (Ex. P- at 5-6).
On September 26, 2017, the CSE convened to develop an IEP for the student through September 2018. The CSE recommended that the student receive the majority of his instruction in a 12:1 special class in in a community school on a ten (10) month basis.
The CSE also recommended that the student receive related services of: specialized transportation; individual occupational therapy, four (4) times per week for thirty (30)
minutes per session; individual speech and language therapy, two (2) times per week for thirty (30) minutes per session; and group speech and language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-I at 6-7, 9-10). Written notice of the CSE’s September 2017 recommendations was not transmitted to the parents until May 2018 (Ex. P-H at 1) and no evidence was offered at the hearing of a proposed placement being offered by the DOE for the student.
The parents object to the September 2018 IEP for the student on both procedural and substantive grounds and seek tuition reimbursement and/or direct payment for their unilateral placement of the student at during the 2017/18 school year (Ex. P-A).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE failed to offer any testimonial evidence that it developed an appropriate IEP for the student for the 2017/18, but challenged the appropriateness of the parents’ unilateral placement for the student.
B. The Parents
Hearing Officer’s Amended findings of act and Decision 7 The DOE should also be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at for the 2017/18 school year. The DOE failed to develop an appropriate educational program for the student. In contrast, 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 private placement. The parents also seek appropriate transportation of the student to and from and an independent neuropsychological evaluation of the student (R. 29-33; Exs. P-A, P-B).
V. FINDINGS OF FA T AND ON LUSIONS 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 (“ 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 (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 genera y Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Row ey,
458 U.S. 176, 206-07 (1982).[4]
A APE 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 Row ey, 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.
Hearing Officer’s Amended findings of act and Decision 8 of Educ., 694 .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 .3d 217, 245 (2d Cir. 2012); Cerra v. Paw ing Cent. Sch. Dist., 427 .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.'" Wa czak v. F orida
Union Free Sch. Dist., 142 .3d 119, 129 (2d Cir. 1998) (quoting Row ey, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 .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 APE even if the violations considered individually do not," see R.E., 694 .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 .3d at 245; A.C. v. Bd. of Educ., 553 .3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 .3d 377, 381 (2d Cir. 2003); Perrice i v.
Carme Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. eb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a APE only if the procedural inadequacies: (a) impeded the student's right to a APE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a APE to the student; or (c)
caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34
C. .R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winke man v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 .3d at 190; M.H., 685 .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 . 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 APE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a APE "by providing personalized Hearing Officer’s Amended findings of act and Decision 9 instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Row ey, 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." Wa czak, 142 .3d at 130; see Row ey, 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 Wa czak, 142 .3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 .2d 563, 567 (2d Cir. 1989); see a so Grim, 346 .3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Row ey, 458 U.S. at 189, 199; Grim, 346 .3d at 379; Wa czak, 142
.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 .3d at 195 (quoting Wa czak, 142 .3d at 130); see a so T.P., 554 .3d at 254; P. v. Newington Bd. of Educ., 546 .3d 111, 118-19 (2d Cir. 2008); Perrice i, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Mi ford Bd. of Educ., 103
.3d 1114, 1120 (2d Cir. 1997); see a so Row ey, 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. .R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see a so Newington, 546 .3d at 114; Gag iardo v.
Ar ington Cent. Sch. Dist., 489 .3d 105, 108 (2d Cir. 2007); Wa czak, 142 .3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 . 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 Roche e,
606 . Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 . 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. .R. § 300.320(a)(1); 8 NYCRR § 200.4(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 Hearing Officer’s Amended findings of act and Decision 10 progress in the general education curriculum, see 34 C. .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. .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 F orence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Schoo Comm. of
Bur ington 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 Bur ington/Carter factors are satisfied. Mr. A. v.
New York City Dep’t of Educ., 769 . Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v.
New York City Dep’t of Educ., 646 . Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v.
Mi s, 34 . 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 a so R.E., 694 .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
At the hearing, the DOE failed to offer any testimonial evidence that it developed an appropriate IEP for the student, or otherwise offered the student a APE, for the 2017/18 school year.
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. .R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 .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 ed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013); B.P. v. New
York City Dep't of Educ., 841 . Supp. 2d 605, 614 (E.D.N.Y. 2012); Tar owe, 2008 WL
Hearing Officer’s Amended findings of act and Decision 11
2736027, at *6.[5] Here, it is undisputed that the CSE did not convene, did not develop an IEP, and did not transmit to the parents prior notice of its program recommendations for the student until well after the beginning of the 2017/18 school year (Exs. P-H, P-I).
Accordingly, I find that September 2017 IEP was untimely as a matter of law and therefore the DOE failed to offer the student a APE.
C. Appropriateness of
Given my finding that the DOE failed to provide the student with a APE during the 2017/18 school year, I turn to the appropriateness of the parents’ private programs.
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 .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 Gag iardo, 489 .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; Bur ington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see
Gag iardo, 489 .3d at 112, 115; Wa czak, 142 .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.’” Gag iardo, 489 . 3d at 112, quoting Frank G., 459 .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 .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 a so Gag iardo, 489 .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.’” Gag iardo, 489 .3d at 115,
Hearing Officer’s Amended findings of act and Decision 12 quoting Row ey, 458 U.S. at 188-89; see a so Weaver v. Mi brook 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 , , and the student’s parent, I find that was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs.
is an independent, not-for-profit special education school, dedicated to the education of children with language-based learning disabilities by utilizing a holistic approach throughout the school day, including a systemic approach for teaching reading by utilizing the Oton-Gillingham method as well as physiological developmental approach in conjunction with regular sensory diets and direct, explicit, multisensory, hands-on instruction (R. 60, 62 69; Ex. P-K). or the 2017/18 school year, had an enrollment of approximately fifty (50) students, with an average of six (6) students per classroom, but no more than eight (8) students, and a lead teacher and additional paraprofessional or assistant teacher in each classroom (R. 61). During the school day, the student’s classroom size would vary, depending on the subject, but ranged between four (4) students to a maximum of eight (8) students total, with one teacher and one paraprofessional in the classroom (R. 59). The range of disabilities in the classroom included language-related learning differences, attention difficulties, indicators of dyslexia, and reading difficulties (R. 59).
, the Student Coordinator at , testified that she was part of the team that screened the student for admissions into ’ program for the 2017/18 school year (R. 48). testified that during the screening process, she learned that the student had been making minimal progress at his previous general education environment and that he displayed various academic delays, including articulation, reading, and mathematical understanding (R. 51). believed that the nature of the program as well as its structure and design would allow the student to make academic progress (R. 52).
testified that in the beginning of the 2017/18 school year, the Hearing Officer’s Amended findings of act and Decision 13 student presented with a very limited academic foundation and his ability to attend, focus and function in the classroom as a student was extremely underdeveloped and as were his social skills with his peers (R. 52-53). or the academic portion of the school day, the student was taught by certified special education teachers (R 54-56). or English Language Arts, the student was taught by , a certified special education teacher in New York with a master’s degree in Special Education (R. 54-55; Ex P-J).
This class had a total of eight (8) students (R. 68). The skills that the focused on with the student were: building his vocabulary, reasoning, critical thinking, and listening skills (R. 68). The methodologies used to teach the student those skills in ELA were direct, explicit, multisensory and hands-on approaches (R. 69).
or math, the student was taught by , who also has her master’s degree in special education and is a certified special education teacher in New York State
(R. 55; Ex P-J). The student’s math class contained four (4) students and focused on foundational math skills that were Common Core-aligned (R. 70). employed various multisensory strategies to teach those skills to the student, including the use of manipulatives, and various modalities that support visual processing with hands-on tactile instruction (R. 70-71).
The student’s language skills instruction science content course was taught by , who has her master’s in special education and is a New York State-certified special education teacher (R. 57). This class focused primarily on foundational skills of writing as well as some science content (R. 71-72).
The Parent also presented the testimony of , the student’s reading and language instructor for the 2017/18 school year (R. 54-55; Ex. P-J).
, has her master’s in Special Education from and is a New York State-certified special education teacher and has also received training in multisensory teaching techniques via the , an off-shoot of the Orton-Gillingham training (R. 54-55, 117-118; Ex. P-J).
has been teaching for ten (10) years in New York, primarily students from grades kindergarten through second grade in both regular and special education (R. Hearing Officer’s Amended findings of act and Decision 14
117-118). has taught at for four (4) years, teaching students with various language-based learning issues, including auditory processing, dyslexia, phonemic awareness, and sounds as well as social issues, including delays in social interaction (R. 117-119). conducted quarterly assessments of the student throughout the school year as well as daily informal assessments as well as a PA assessment (R. 121-122). testified that the student started the school year with poor phonemic awareness, poor decoding skills, and struggled behaviorally as well, including lacking in understanding and related to other children in the classroom (R. 123-
125). She used a variety of techniques to individualize her teaching to meet the student’s needs, including sequencing and incremental teaching and direct instruction as well as multisensory strategies such as finger-tracing and a dictation notebook (R. 128-130).
The student also received related services at during the 2017/18 school year (Ex. P-J). He received counseling as a related service via a social skills training program from , a licensed school , speech language therapy services from , a New York State-certified , and occupational therapy services from a certified occupational therapist (R. 56-57, 64; Ex. P-
J). The student’s teachers regularly collaborated throughout the school year, including via formal monthly meetings and informal meetings, to continually track and monitor students and their progress (R. 63).
Both and testified that was an appropriate
placement for the student for the 2017/18 school year (R. 78-85, 138-139; Exs. P-E, P-L, P-M). Specifically with reading, the student started the school year with little knowledge of phonetic principles but by the end of the school year, he was reading at an emergent level and had knowledge of all of the consonant letters and he was blending consonant-vowel-consonant words with two (2) vowels and he was sable to read short passages with controlled texts (R. 138; Ex. P-E). Socially, the student learned appropriate classroom behaviors and learned how to follow authority and become an independent learner (R
138; Exs. P-E, P-L, P-M).
D. Relevant Equities Hearing Officer’s Amended findings of act and Decision 15 The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Bur ington, 471 U.S. at 374; R.E., 694 .3d at 185, 194; M.C. v. Vo untown Bd. of Educ., 226 .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. .R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 . 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. eb.
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); Carme Cent. Sch. Dist. v. V.P., 373 . Supp. 2d 402, 417-18 (S.D.N.Y.
2005), aff’d, 192 ed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v.
C arkstown Cent. Sch. Dist., 363 . 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 [ APE] 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. .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 [ APE] can be provided in the public schools." Green and Sch. Hearing Officer’s Amended findings of act and Decision 16
Dist. v. Amy N., 358 .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
Green and, 358 .3d at 160; Ms. M. v. Port and Sch. Comm., 360 .3d 267 (1st Cir.
2004); Berger, 348 .3d at 523-24; Rafferty, 315 .3d at 27; see a so Frank G., 459 .3d at 376; Vo untown, 226 .3d at 68; Lauren V. v. Co onia Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at for the 2017/18 school year.
In a letter dated July 5, 2017, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at for the 2017/18 school year at public expense (Ex. P-B). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C. .R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE (Ex. P-I), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition and related services at unreasonable (Exs. P-C, P-D), see Carter, 510 U.S. at 16.
E. Transportation
The parents requested reimbursement for the cost of transporting the student to and from for the 2017/18 school year (Ex. P-A at 7). By letter dated July 5, 2017, the parents notified the DOE of their intention to place the student at and seek the costs of such placement from the DOE, including the cost of transportation (Ex. P-B). The parents' request for the cost of transportation of the student to and from for the 2017/18 school year is supported by the evidence in the hearing record as it was associated with the parents' unilateral placement of the student at and the parents are awarded reimbursement for transportation costs (e.g., mileage and tolls) to and from for the 2017/18 school year.
The parents' separate claim for transportation pursuant to Education Law Section
4402(4)(d) need not be addressed under these circumstances.
. Independent Educational Evaluation (IEE) Hearing Officer’s Amended findings of act and Decision 17
In their due process complaint, the parents seek funding for an independent neuropsychological evaluation of the student at public expense (Ex. P-A at 7). As the parents here never asserted disagreement with any public evaluation prior to their due process complaint, their claim for an IEE at public expense is denied.
Generally, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the parent or teacher requests a reevaluation. See 34 C. .R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4). A school district, however, need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and must conduct one at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary. See 8 NYCRR § 200.4(b)(4); see a so
34 C. .R. §§ 300.303(b)(1)-(2). 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. .R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C. .R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Subject to certain limitations, federal and State regulations provide that a parent has a right to obtain an IEE at public expense if a parent disagrees with an evaluation obtained by the school district. See 34 C. .R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A school district may request the reason that the parent(s) disagree with an evaluation, but may not require an answer from the parents or impose any additional conditions prior to providing an IEE at public expense. See 8 NYCRR §§ 200.5(g)(1)(ii),
(iii). Rather, “[i]f a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” 8 NYCRR § 200.5(g)(1)(iv). Hearing Officer’s Amended findings of act and Decision 18
A school district is not required to initiate a separate due process hearing to defend its evaluation of the student when parents first request an IEE at public expense in their due process complaint. See App ication of a Student with a Disabi ity (Rockville
Centre U SD), Appeal No. 18-144 at 49-51 (SRO eb. 13, 2019) rev’g App ication of a Student with a Disabi ity (Tuxedo Union ee Sch. Dist.), Appeal No. 08-087 at 18 (SRO Dec. 15, 2008), rev’d on other grounds, G.B. & L.B. v. Tuxedo Union Free Sch. Dist., 751 . Supp. 2d 552 (S.D.N.Y. 2010), aff’d, 485 . App’x 954 (2d Cir. 2012).
The CSE conducted a psychoeducational evaluation of the student in August 2017 (Ex. P- ). There is no evidence contained in the hearing record that the parents expressed disagreement with the CSE’s August 2017 psychoeducational evaluation, or specifically requested an IEE at public expense, prior to the february 23, 2018 due process complaint (Ex. P-A). As the parents here did not express disagreement with an evaluation conducted by the CSE and request that an IEE be conducted at public expense,
I find that the DOE was under no obligation to either ensure that an IEE was provided at public expense or initiate an impartial hearing to establish that its evaluation was appropriate. See G.J. v. Muscogee Cty. Sch. Dist., 668 .3d 1258, 1266 (11th Cir. 2012);
P.P. ex re . Michae P. v. W. Chester Area Sch. Dist., 585 .3d 727, 740 (3d Cir. 2009).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FA T,
IT IS
HEREBY ORDERED THAT:
The parents’ claim that the student was denied a free appropriate public education ( APE) for the 2017/18 school year is SUSTAINED;
Within thirty (30) days of the date of this Order, the DOE shall reimburse the parents, and/or directly pay, for all costs, including transportation costs, associated with the student’s unilateral placement at for the 2017/18 school year; and
The parents’ claim for an independent neuropsychological evaluation of the student at public expense is DENIED.
Dated: March 7, 2019
Original Decision Rendered: March 25, 2019 Hearing Officer’s Amended findings of act and Decision 19
JE REY J. SCHIRO, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTI E
The parent and/or the New York ity 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 ommissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York ity Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 hurch Street, New York, NY 10007 at the Messenger enter. Hearing Officer’s Amended findings of act and Decision 20
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 2/23/18, 8 pgs.
B. Ten Day Notice w/ proof of service, 7/5/17, 7 pgs.
C. Enrollment Contract, 9/1/17, 2 pgs.
D. Tuition Affidavit, 7/19/18, 1 pg.
E. Progress Report, 2017/18, 5 pgs.
. Psychoeducational Evaluation, 9/15/17, 6 pgs.
G. form 1040 U.S. Individual Income Tax Return, 2017, 2 pgs.
H. Prior Written Notice (Notice of Recommendation), 6/22/18,[4] pgs.
I. Individualized Education Program (IEP), 5/21/18, 11 pgs.
J. Student Class Schedule, 2017/18,[2] pgs.
K. Program Description, 2017/18, 10 pgs.
L. SLT End-of-Year Summary, 6/2018, 5 pgs.
M. OT Student Progress Report, 6/17/18,[3] pgs.
N. Social Skills Training Update, 6/2018, 1 pg.
O. Student Attendance Record, 2017/18,[1] pg.
DEPARTMENT O EDUCATION
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. 180-181; Exs. IHO-I - IHO-X). See 34 C. .R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Other hea th impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10).
[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] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following." N.Y. Educ. Law § 2(15).
[1] [Reserved]
[2] [Reserved]
[3] OT Student Progress Report, 3/30/17, 2 pgs.
[4] SLT Student Progress Report, 1/14/17, 2 pgs. IMPARTIAL HEARING O ICER I. Confirmation of Extension, 5/4/18, 1 pg. II. Confirmation of Extension, 6/1/18, 1 pg. III. Confirmation of Extension, 7/5/18, 1 pg. IV. Confirmation of Extension, 8/6/18, 1 pg. V. Confirmation of Extension, 9/1/18, 1 pg. VI. Confirmation of Extension, 10/5/18, 1 pg. VII. Confirmation of Extension, 11/4/18, 1 pg. VIII. Confirmation of Extension, 12/3/18, 1 pg. IX. Confirmation of Extension, 1/2/19, 1 pg. X. Confirmation of Extension, 2/1/19, 1 pg.