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FINDINGS OF FACT & DECISION
Case Number: 179871
Student Name:
District:
Hearing Requested By: Parents
Dates of Hearings: May 31, 2019
June 14, 2019
July 8, 2019
August 2, 2019
August 29, 2019
Actual Record Close Date: May 15, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2019
ESQ., Attorney — Student
Parents
Parents
Special Education Teacher (via telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2019
ESQ., Attorney — Student
Parents
Parents
ESQ., Attorney — DOE
Social Worker — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2019
ESQ., Attorney — Student
Parents
Parents
Assistant Director of Admissions, (via telephone) — Student
ESQ., Attorney — DOE
Teacher, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 2, 2019
ESQ., Attorney — Student
Parents
Parents
Ph.D., SEIT/School Psychologist (via telephone) — Student
ESQ., Attorney — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated September 25, 2018.[1] 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 (“FAPE”) for the 201 8/19 school year (Ex. P-A).[2]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R.
§§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5)
business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii),
(xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to serve as the IHO in this matter on December 5, 2018 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). On February 1, 2019, a prehearing conference was held to clarify the hearing issues and set dates for the hearing (R. 2- noted as “Ex.” 5).[3] See 8 NYCRR § 200.5(j)(3)(xi). Hearings on the merits of this matter were held on: May 31, 2019; June 14, 2019; July 8, 2019; and August 2, 2019.[4] 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).[5]
III. FACTUAL BACKGROUND
At the time of the September 25, 2018 due process complaint, the student was years old with moderately delayed expressive language skills (Exs. P-A, P-J at 1, P-N at 4). For the 2018/19 school year, the parents enrolled the student in (Exs. P-A, P-B,
P-Q, P-S, P-T, P-U, P-W), which has 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 eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A, SD-5 at 1). See 8 NYCRR § 200.1(zz)(11).[6]
During the 2017/18 school year, the student attended universal pre-kindergarten at (Exs. P-I at 2, SD-18 at 1). On November 10, 2017, the student participated in a private speech and language assessment to determine if she would benefit from speech and language therapy. The student’s receptive and expressive language skills were formally assessed using the Clinical Evaluation of Language Fundamentals (“CELF-Preschool 2”). The student achieved a standard score of 90 on the Receptive Language Composite, which was at the twenty-fifth (25th)
percentile. On the Expressive Language Composite, the student earned a standard score of 75, which was at the fifth (5th) percentile. The private evaluator found that “the results of formal testing suggest a language disorder characterized by essentially adequate receptive language skills and moderately delayed expressive language skills” (Ex. P-N at 2, 4). The student began receiving speech and language therapy privately, at a frequency of two (2) times per week, starting in December 2017 (Exs. P-K at 1, P-M at 1).
At this time, the student was also evaluated by the DOE’s Committee on Preschool Education to assess her then-current functioning and determine appropriate school placement and services (Ex. P-I at 1). On December 13, 2017, the student participated in an educational evaluation, during which the Developmental Assessment of Young Children – 2 (“DAYC-2”)
was administered to the student. The DAYC-2 is a standardized evaluation that utilizes a subjective parental/caregiver report to determine the developmental status of young children.
According to the DAYC-2, the student’s skills in the cognitive areas of development were in the Low Average range (standard score 86). Her skills in the receptive and expressive communication areas of development were assessed to be in the Borderline range (receptive language standard score 77; expressive language standard score 75). The student’s skills in the social/emotional area of development were assessed to be in the Mild range (standard score 67).
Her skills in the gross and fine motor areas of development were assessed to be in the Low Average range (gross motor standard score 87; fine motor standard score 89). Lastly, the student’s skills in the self-help/adaptive area of development were assessed to be in the Average range (standard score 98) (Ex. P-K at 3-6).
During the December 2017 educational evaluation, the student’s mother reported that her primary areas of concern were the student’s language, processing and ability to regulate her body.
The student’s teacher reported that her primary areas of concern were about the student’s ability to process information, understand language receptively and use language expressively. The evaluator also observed the student to exhibit frustration when trying to navigate social situations
(Ex. P-K at 6-7).
During a December 20, 2017 psychological evaluation, the student was administered the Stanford-Binet Intelligence Scales, 5th Edition (“SB-5”), to assess her then-current functioning in various cognitive domains. The student earned a Full Scale IQ score of 94, which fell at the thirty-fourth (34th) percentile of similar aged peers. On a composite of subtests that required little or no vocal responses, including pointing, making movement responses, or assembling pieces such as blocks, toys, chips, and puzzle pieces; the student obtained a Nonverbal IQ score of 103, which fell in the Average range and was at the fifty-eighth (58th) percentile. On a composite of subtests that required a degree of expressive language, the student earned a Verbal IQ score of 86, which was at the eighteenth (18th) percentile and fell in the Low Average range (Exs. P-H at 1, P-
J at 4-5).
On the Vineland Adaptive Behavior Scales – Second Edition (“VABS-II”), in which the student’s mother served as an informant, the student earned an overall Adaptive Behavior Composite of 91, which was at the twenty-seventh (27th) percentile and fell within the Average range. This composite score was made of scores in the Communication, Daily Living Skills, Socialization and Motor Skills domains. The student achieved a standard score of 79 on the
Communication domain, which was at the eighth (8th) percentile and in the Moderately Low range. She achieved a standard score of 91 on the Daily Living Skills domain, which fell at the twenty-seventh (27th) percentile and was in the Adequate range of functioning. On the
Socialization domain, she achieved a score of 85, which was at the sixteenth (16th) percentile and in the Moderately Low range of functioning. Finally, on the Motor Skills domain, the student earned a standard score of 117, which was at the eighty-seventh (87th) percentile and in the Moderately High range (Exs. P-H at 3, P-J at 8).
On January 24, 2018, the CPSE convened to consider the student’s eligibility for preschool special education services and develop an IEP for the student. The CPSE found the student eligible for preschool special education services and recommended that she receive direct, group (2:1) special education itinerant teacher (“SEIT”) services for three hours per week. The
CPSE also recommended that the student receive direct, individual speech and language therapy, two (2) times per week for forty-five (45) minutes per session (Ex. P-E at 9).
According a March 7, 2018 educational progress report, the student presented as a social child that was inquisitive and, with SEIT support, was expanding her play skills and social-emotional skills. The student appeared happy to be in school with her friends and engaged in a variety of activities. With modeling of language provided by her SEIT, the student was learning to initiate play with peers and participate in a contextual, reciprocal conversation with an adult or peer. With SEIT support, the student was learning to use successful strategies for entering groups. The student, however, lacked verbal skills required to improve her social interactions with peers and adults. She had difficulty using words to express her wants, needs and emotions.
She exhibited defiant behavior when in a challenging situation, such as crying, turning her back and ignoring adult requests. The student’s SEIT implemented a positive reinforcement strategy to help her regulate her emotions and follow instructions of her teachers and providers (Ex. SD-18 at 1).
The CPSE reconvened on April 24, 2018 and recommended an increase in the student’s group (2:1) SEIT services from three (3) hours per week to eight (8) hours per week. The CPSE determined that an increase in the student’s SEIT services mandate was necessary because her communication and language processing challenges were having an impact on her classroom functioning and required daily SEIT support. The student’s speech and language therapy mandate (i.e., 2x45x1) remained the same (Ex. SD-3 at 1).[7]
On May 4, 2018, the CSE convened to consider the student’s initial eligibility for school-age special education services. The CSE determined that the student was eligible for school-age special education services and educationally classified the student as having a speech or language impairment. For the 2018/19 school year, the CSE recommended that the student receive the majority of her instruction in a general education program at a community school with integrated co-teaching (“ICT”) services in ELA and math.[8] The CSE also recommended that the student receive related services of: group (3:1) counseling, one time per week for thirty (30) minutes per session; individual occupational therapy, one time per week for thirty (30) minutes per session; group (2:1) occupational therapy, one time 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 (3:1) speech and language therapy, one time per week for thirty (30) minutes per session (Ex. SD-5 at 1, 9).
The parents are not in agreement with the May 2018 CSE. The student’s mother stated her belief that the student has a significant language-based learning disability and that she requires a small, structured school setting that uses a multisensory approach to teaching with a high level of repetition and individualized teaching. The parents asserted that the student would not be successful in school without consistent support throughout the school day (Ex. SD-5 at 2).
In a letter dated August 17, 2018, the parents informed the CSE that they were rejecting its May 2018 IEP for the student and advised the CSE of their intent to unilaterally place the student at for the 2018/19 school year at public expense (Exs. P-B, P-C).
This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement and/or direct payment for their unilateral private placement of the student at should be denied. The DOE offered the student a FAPE for the 2018/19 school year. The May 2018 IEP was both procedurally valid and substantively appropriate. was not an appropriate educational placement for the student because it was overly restrictive. The relevant equities also mitigate against an award of tuition reimbursement and/or direct payment, as the cost of the private school was unreasonable and the parents never had a good faith intention of placing the student in a public school (Ex. SD-31).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s private placement at for the 2018/19 school year. The DOE failed to develop an appropriate educational program for the student. There were a number of procedural flaws in the CSE’s May 2018 IEP for the student, including: untimely notice and/or transmission of the IEP; that the May 2018 CSE was improperly constituted; and that the CSE’s recommendations for the student were predetermined. The parents also assert that the CSE’s recommendation of ICT services for the student was inappropriate and insufficient. 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 (R. 418-424; Exs. P-A, P-B, P-DD).[9]
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a 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 (2) 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).[10]
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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); 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). The
Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.
After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct.
988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's 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
(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. 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 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 CFR § 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. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. 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 Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(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).
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. Procedural Compliance – Transmittal/Receipt of May 2018 IEP The parents assert that the DOE failed to provide them with a timely IEP, prior written notice and school location letter (Exs. P-A at 1, P-DD at 15-17). As indicated below, the hearing record fails to substantiate the parents’ assertions.
A school district is required to have an IEP in effect for each student with a disability at the beginning of the school year and provide a copy of the IEP to the parents. See 34 C.F.R.
§§ 300.322(f), 300.323(a); 8 NYCRR §§ 200.4(e)(1)(ii), (e)(3)(iv); Cerra, 427 F.3d at 193-94
(holding that a school district "fulfill[s] its legal obligations by providing the IEP before the first day of school"); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y.
2012). Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE if the violation (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); G.B. v. New York City Dep't of Educ., 145 F. Supp. 3d 230, 246 (S.D.N.Y. 2015) (finding the failure to provide the IEP before the first day of school was a procedural violation that did not significantly impede the parents' participation in the CSE process); K.M. v. New York City Dep't of Educ., 2015 WL
1442415, at *1 (S.D.N.Y. Mar. 30, 2015) (same); but see C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 225-27 (S.D.N.Y. 2014) (finding the failure to provide a copy of the IEP before the beginning of the school year impeded the provision of a FAPE to the student).
There is no dispute that the CSE met on May 4, 2018 and discussed the contents of the student's IEP for the upcoming 2018/19 school year (R. 441, 594; Exs. SD-5). There is also no dispute that the parents provided their informed written consent to receive educational records of the student electronically (R. 156, 158; Exs. SD-14, SD-15). Lastly, there is no dispute that on May 15, 2018, (a social worker assigned to the CSE) emailed the student’s mother the student’s IEP and a prior written notice memorializing the CSE’s recommendations for the student (R. 160; Exs. SD-5, SD-7, SD-29).[11] The hearing record also reflects that the student’s mother visited the proposed ICT program for the student and met with CSE staff after the site visit to share her opinions of the proposed program (R. 504, 507-510, 516).
Alternatively, while the parents argue that the May 15, 2018 electronic transmission of the student’s May 2018 IEP should be deemed a nullity because the relevant attachments were not referenced in the subject line of the email (Ex. P-DD at 15-16), the attached IEP and prior written notice were referenced in the body of the (relatively short) electronic message from to the student’s mother (Ex. SD-29). In addition to the signed consents for receipt of the student’s educational records electronically (Exs. SD-14, SD-15), the hearing record includes extensive electronic communication between and the student’s mother during the month of May 2018 (Ex. SD-30), indicating that both parties were comfortable with communicating with one another electronically.
While the parents also assert that the DOE and/or its counsel had a duty to correct misstatements made in the parents’ ten day notice and due process complaint of the absence of an IEP for the student (Exs. P-A, P-B, P-X, P-DD at 16-17), the parents have cited no legal authority to support that argument. In any event, even if the CSE’s electronic delivery of a copy of the May 2018 IEP to the parents was a procedural error, it did not impede the parents’ ability to participate in the development of the student’s educational program or constitute a denial of a FAPE for the 2018/19 school year because the parents participated in the May 2018 CSE meeting and rejected the recommended IEP during the meeting. The parents also notified the DOE by letter dated August 17, 2018 of their intention to unilaterally place the student at prior to the time the DOE was required to implement the IEP (Exs. P-B, P-S,
SD-5 at 2, 17, SD-7, SD-8). See Application of a Student with a Disability (Bedford Cent. Sch.
Dist.), Appeal No. 17-088 at 24 (SRO Dec. 8, 2017).
C. Procedural Claims Not Raised in Due Process Complaint
In their memorandum of law, the parents raise several procedural challenges to the May 2018 IEP for the first time, including that the CSE was improperly constituted and that the CSE’s recommendations were predetermined (Exs. P-A, P-DD). As these procedural challenges to the May 2018 IEP were omitted from the parents’ due process complaint, I find that they are beyond the scope of this hearing.
Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 09-141 at 12-13 (SRO March 11, 2010); Application of the New York City Dep't of Educ., Appeal No. 08-056 at 11 (SRO Aug. 13, 2008).
Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees, see 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii), or the original due process complaint notice is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing, see 20 U.S.C. § 1415(c)(2)(E)(i)(II); 34 C.F.R. § 300.507(d)(3)(ii); 8 NYCRR § 200.5(i)(7)(b); N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584 (S.D.N.Y
2013); see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 2014 WL 2748756, at
*1-*2 (2d Cir. June 18, 2014).
The parents’ due process complaint notice does not include any procedural FAPE allegations related to the May 2018 IEP, other than the transmittal and receipt issue discussed above (Ex. P-A). The DOE did not subsequently agree to add any procedural FAPE allegations related to the May 2018 IEP and the parents did not attempt to amend the due process complaint notice to include those issues. Accordingly, I find that procedural FAPE issues raised for the first time in the parents’ post-hearing memorandum of law are outside the scope of the impartial hearing. See B.P. v. New York City Dep't of Educ. , 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012)
(explaining that "[t]he scope of the inquiry of the IHO, and therefore the SRO . . . , is limited to matters either raised in the . . . impartial hearing request or agreed to by [the opposing party])."
Alternatively, while the parents “reserved the right to raise any other procedural or substantive issues that may come to their attention during the pendency of the litigation” in their due process complaint (Ex. P-A at 3), I do not find that a reservation of rights constitutes adequate notice of disputed issues as required by the IDEA and its implementing regulations.
See Application of the Bd. of Educ. of the Ramapo Cent. Sch. Dist., Appeal No. 14-042 at 5 n.5
(SRO Dec. 31, 2014) (“A general reservation of rights, however, does not preserve arguments not specifically raised in the due process complaint notice.”); see also T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 335–36 (S.D.N.Y. 2013) (holding that "catch-all allegations" in a due process complaint notice are insufficient to bring an issue within the scope of an impartial hearing); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012) (rejecting the proposition that a general reservation of rights in a due process complaint notice preserves additional procedural arguments later in the proceeding).
D. Substantive Merit of Proposed ICT Program
The parents assert that the May 2018 IEP denied the student a FAPE because the severity of the student’s language delays would have prevented her from accessing the curriculum with an ICT class or other general education environment (Exs. P-A at 2, P-DD at 8-15). As discussed below, I find that there was insufficient evidence that the student would receive adequate support with ICT services in a general education classroom.
For the 2018/19 school year, the CSE recommended that the student receive the majority of her instruction in a general education program at a community school with ICT services in ELA and math (Ex. SD-5 at 1, 9). , a special education teacher assigned to the CSE, described the ICT program as follows:
So an ICT classroom, an integrated co-teaching classroom has two teachers; a certified special education teacher and a certified general education teacher. Up to 40 percent of the students in the classroom have IEPs. And this type of classroom gives a special education student the support that they need and allows them to stay in the least restrictive environment.
The special education teacher in the classroom develops what we call specially designed instruction, which is instruction that’s tailored specifically to students’ needs. So the special education teacher in the classroom would look at [the student’s] IEP, would look at specifically what her needs are, and design instruction to meet those needs (R. 287).
In order to be determined substantively appropriate, the ICT services, together with the other services in the student's IEP, must sufficiently address the student's needs. The ICT services must also be reasonably calculated to enable the student to achieve her annual goals on the IEP. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 18-079 at 26 (SRO Jan. 9, 2019).
Among the other elements of an IEP is a statement of a student's academic achievement and functional performance and how the student's disability affects his or her progress in relation to the general education curriculum. See 20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R.
§ 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i). In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. See 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2).
In addition, an IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
According to the May 2018 IEP, the principal evaluative document upon which the CSE relied upon in developing the student’s IEP were April 30, 2018 GOLD Assessments, which were not included in the hearing record (Ex. SD-5 at 1). stated that in preparation for that meeting, she reviewed, among other things, “the GOLD Assessments that [the student’s]
classroom teacher [ ] had performed” (R. 280). Later, clarified that what she had reviewed prior to the May 2018 meeting was a March 7, 2018 Educational Progress Report, which referenced “Teaching Strategies Gold” as one of several data points (R. 286; Ex.
P-F).[12] Dr. , a certified school psychologist employed by
(“ ”), testified that the content of the April 2018 GOLD Assessments were a disputed issue at the May 2018 meeting because report of the student’s progress in her prekindergarten class contradicted “the evaluations and the progress reports we [i.e., ] had just submitted to them [i.e., the CSE],” which had supported an increase in the student’s SEIT services (R. 427, 432-433; Exs. P-F, P-J, P-K, P-AA, SD-18).[13] asked the DOE members of the May 2018 CSE to produce the protocols, student responses or narratives associated with the April 30, 2018 GOLD Assessments, but the DOE members were unable to do so (R. 433-434).
As the April 30, 2018 GOLD Assessments were not included in the hearing record, I am unable to evaluate the sufficiency of those assessments, reconcile the contrary opinions raised at the May 2018 CSE regarding the student’s level of progress in prekindergarten with SEIT support, or conclude that the May 4, 2018 IEP included an adequate description of the student’s needs and abilities. Likewise, without demonstrating the sufficiency of the IEP’s description of the student’s academic, functional and management needs, I am unable to meaningfully review the appropriateness of the of the IEP’s annual goals. 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 May 4, 2018 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 12-13 (SRO Feb. 25, 2015).
Alternatively, even if I were to conclude that the May 2018 IEP contained sufficient evaluations and appropriate educational goals, I would not find that the student would have received sufficient support with ICT services in a general education classroom.
credibly testified that as of May 2018, the student was functioning between one and a half and two standard deviations below the mean in all areas and was not capable of learning in an ICT to increase [the student’s] SEIT support so that she can continue to learn from [her] typical developing peers while receiving 1:1 special education support to her IEP goals in a general education setting (Exs. P-F at 2, SD-18 at 2). Accordingly, on April 24, 2018 the CPSE recommended an increase in the student’s SEIT services from three (3) hours per week to eight (8) hours per week. The CPSE determined that an increase in the student’s SEIT services mandate was necessary because her communication and language processing challenges were having an impact on her classroom functioning and required daily SEIT support (Ex. SD-3 at 1). program of over twenty-five (25) students (R. 438). acknowledged that the student would have had difficulty focusing in the recommended ICT classes (R. 441).
, the student’s private speech and language pathologist who accompanied the student’s mother to observe the proposed program, testified that the children in the classroom were not called on and the teacher did not check in with them to confirm their understanding or encourage their participation (R. 599).
From the testimony of and , I conclude that the May 2018 CSE’s recommendation of ICT services for the student was premised largely (if not wholly) on the perceived benefit of the student’s exposure to neurotypically developed peers (R. 189, 300).
While least restrictive environment considerations are important to program development, the requirement that a student be placed in the LRE must be balanced against the requirement that each student receive an appropriate education. See Briggs v. Board of Educ., 882 F.2d 688, 692 (2d Cir. 1989). Here, the May 2018 CSE improperly elevated LRE considerations over its obligation to offer the student a FAPE.
E. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2018/19 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 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. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. See Carter, 510 U.S. at 14.
The private school need not employ certified special education teachers or have its own IEP for the student. See id. at 13-14. “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-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 , , Ms. , Ms. and the student’s mother, I find that
(“ ”) was an appropriate program for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 52, 84, 105; Ex. P-V). The student made appropriate academic, social, and emotional progress at , despite her difficulties present at the beginning of the year (R. 90; Ex. P-Q).
At the beginning of the 2018/19 school year, the student was observed to be extremely reserved, reluctant to speak, and exhibited an extreme lack of confidence (R. 55, 394-395). She required significant prompting and encouragement in the classroom. She began the year unable to recognize the numbers one through ten, lacked the ability to read from left to right, and did not know the corresponding sounds to letters (R. 82-83). testified that the student required placement with a language-based learning curriculum, that would have special education teachers, learning specialists and speech pathologists regularly working with her in the classroom and closely monitoring her progress in order to allow her to better communicate with her peers and flourish academically (R. 595, 613).
is a New York State approved non-public school that provides special education and related services to students with disabilities (R. 387; Exs. P-D, P-R). is designed primarily for students of average-to-above average IQ, with language-based learning difficulties who require academic and social emotional support. Classrooms at are staffed at a ratio of twelve (12) students to one teacher, and an assistant teacher (R. 52, 54, 387).
To address the student’s significant expressive language and social delays, she received speech therapy twice a week, once as a push-in and once as a pull-out. The student also received occupational therapy once a week. Both therapies were implemented by New York State-certified professionals (R. 79, 82). also provided “flex periods” which were designed to allow students to receive additional services, such as speech therapy or occupational therapy, without missing classroom time, and to allow students to catch up on their writing work (R. 76). The student concluded the year at a Fountas & Pinnell independent reading level “A,” which was higher than her functioning at the beginning of the 2018/19 school year (R. 57-58).
The student’s social and emotional deficits were addressed at through “social support periods” that offered the student daily opportunities to engage in peer and social interactions during recess and lunch with the support of a teacher (R. 59). The student was given preferential seating next to the teacher and encouraged to raise her hand (R. 105). In addition, provided the student supported social opportunities in a small 12:1+1 setting, including lunch and recess, which allowed her teachers to facilitate her social interactions with her peers.
At the beginning of the year the student’s class ate lunch and had recess alone as a class, which allowed the student’s teachers to foster her social interactions amongst her peers (R. 73). As the year progressed, the student’s lunch period transitioned to the cafeteria with two other classrooms of similarly aged and functioning peers. The student was placed at a table with six (6) students and one teacher which allowed her the opportunity to socialize and interact with older peers, while limiting her exposure to an overwhelming environment (R. 74, 84). Throughout the school day, even during lunch, the student consistently has the support of at least two (2) teachers (R. 70,
75).
F. Relevant Equities
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. 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 for the 2018/19 school year. In a letter dated August 17, 2018, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at for the 2018/19 school year at public expense (Ex.
P-B). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE (Exs. P-E, P-G, SD-3, SD-
5, SD-9, SD-29, SD-30), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition and related services at unreasonable given the severity of the student’s needs and services necessary to address those needs (Exs. P-S, P-T, P-W), 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 that the student was denied a free appropriate public education (FAPE)
for the 2018/19 school year is SUSTAINED; and
Within thirty (30) days of the date of this Order, the DOE shall reimburse the parents, and/or directly pay, for all costs associated with the student’s unilateral placement at for the 2018/19 school year.
Dated: May 29, 2020
/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. Revised Due Process Complaint Notice/Impartial Hearing Request, 9/25/28, 5 pgs.
B. Ten Day Notice, 8/17/18, 2 pgs.
C. Email Correspondence, 8/17/18, 1 pg.
D. Findings of Fact & Decision (IHO ) Case No. , 5/4/18, 5 pgs.
E. Preschool Individualized Education Program (IEP), 1/24/18, 13 pgs.
F. Educational Progress Report, 3/7/18, 3 pgs.
G. Letter to from , 3/5/18, 2 pgs.
H. Preschool Student Evaluation Summary Report, undated, 3 pgs.
I. Social History Report, 12/20/17, 3 pgs.
J. Psychological Report, 12/20/17, 10 pgs.
K. Educational Evaluation, 12/13/17, 7 pgs.
L. School Observation Form, 12/13/17, 4 pgs.
M. Speech/Language Progress Report, undated, 2 pgs.
N. Speech/Language Assessment, 11/10/17, 5 pgs.
O. Occupational Therapy Progress Report, 4/16/18, 4 pgs.
P. Occupational Therapy Evaluation, 12/18/17, 6 pgs.
Q. Mid-Year Report Card, 1/2019, 14 pgs.
R. Program Description, undated, 1 pg.
S. Enrollment Contract, 2 pgs.
T. Tuition Affidavit, 5/22/19, 1 pg.
U. Attendance Record, 5/17/19, 2 pgs.
V. Class Schedule, 2018/19, 1 pg.
W. Proof-of-Payments, various dates, 8 pgs.
X. Email Correspondence – DOE Representation, 5/17/19, 1 pg.
Y. NYC DOE – Special Education in NYC, undated, 9 pgs.
Z. Draft Recommendation of Special Education Programs & Services, undated, 2 pgs.
AA. Resume – , undated, 10 pgs.
BB. Resume – , undated, 1 pg.
CC. Signed Subpoena ( , LCSW), 7/15/19, 1 pg.
DD. Memorandum of Law & Closing Argument, 20 pgs., 9/25/19
DEPARTMENT OF EDUCATION
1. [Reserved]
2. [Reserved]
3. Preschool Individualized Education Program (IEP), 4/24/18, 14 pgs.
4. [Reserved]
5. Individualized Education Program (IEP), 5/4/18, 17 pgs.
6. Notice of Committee on Special Education (CSE) Meeting, 4/10/18, 3 pgs.
7. Prior Written Notice & School Location Letter, 5/14/18, 6 pgs.
8. Prior Written Notice, 6/14/18, 5 pgs.
9. Email Correspondence, various dates, 4 pgs.
10. [Reserved]
11. [Reserved]
12. Classroom Observation, 4/27/18, 2 pgs.
13. [Reserved]
14. Consent for Use of Electronic Mail, 1/24/18, 1 pg.
15. Consent for Use of Electronic Mail, 2/9/18, 1 pg.
16. [Reserved]
17. [Reserved]
18. Educational Progress Report, 3/7/18, 2 pgs.
19. [Reserved]
20. [Reserved]
21. [Reserved]
22. [Reserved]
23. [Reserved]
24. [Reserved]
25. SESIS Events Log, various dates, 2 pgs.
26. Parent Survey, undated, 3 pgs.
27. [Reserved]
28. [Reserved]
29. Email Correspondence, 5/15/18, 1 pg.
30. Email Correspondence, 5/2018, 78 pgs.
31. Closing Brief & Memorandum of Law, 9/25/19, 24 pgs.
IMPARTIAL HEARING OFFICER
I. Signed Subpoena ( ), 7/1/19, 1 pg.
II. Signed Subpoena ( , LCSW), 7/15/19, 1 pg.
III. Confirmation of Extension, 2/10/19, 1 pg.
IV. Confirmation of Extension, 3/12/19, 1 pg.
V. Confirmation of Extension, 4/11/19, 1 pg.
VI. Confirmation of Extension, 5/11/19, 1 pg.
VII. Confirmation of Extension, 6/10/19, 1 pg.
VIII. Confirmation of Extension, 7/10/19, 1 pg.
IX. Confirmation of Extension, 8/9/19, 1 pg.
X. Confirmation of Extension, 9/8/19, 1 pg.
XI. Confirmation of Extension, 10/8/19, 1 pg.
XII. Confirmation of Extension, 11/7/19, 1 pg.
XIII. Confirmation of Extension, 12/7/19, 1 pg.
XIV. Confirmation of Extension, 1/6/20, 1 pg.
XV. Confirmation of Extension, 2/5/20, 1 pg.
XVI. Confirmation of Extension, 3/6/20, 1 pg.
XVII. Confirmation of Extension, 4/5/20, 1 pg. XVIII. Confirmation of Extension, 5/5/20, 1 pg.
Footnotes
[1] The parents filed their due process complaint with the school district, however, on November 27, 2018.
[2] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are
[3] Counsel for the student and parents did not appear for the February 1, 2019 prehearing conference, which was noticed to all parties via the DOE’s electronic Impartial Hearing System.
[4] Hearing dates scheduled for February 11, 2019 and April 22, 2019 were adjourned at the DOE’s request.
[5] 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 complai nt. 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. 264-265, 408-409, 574-575, 638-639; Exs. IHO-III – IHO-XVIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[6] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[7] The parents initiated an impartial hearing on or about March 1, 2018 requesting an increase in SEIT hours to eight hours per week and seeking reimbursement for private speech services at an enhanced rate (Case No. ). In a Findings of Fact and Decision (“FOFD”) dated May 4, 2018, IHO noted that the CPSE had increased the student’s SEIT mandate to eight (8) hours per week. The student’s mother testified in Case No. that the student had not received mandated speech and language therapy at school, that she had unsuccessfully contacted four or five agencies to provide the student with speech and language therapy at the DOE’s authorized rate, and that she then continued to use the services of an outside qualified speech provider at an enhanced rate. There being no position taken by the DOE, i.e., no evidence, no witnesses, IHO Lushing directed the DOE to provide the student with eight (8) hours per week of SEIT services through August 2018 and reimburse the parents for two (2) sessions of speech and language therapy per week at a rate of $150 per session through August 2018 (Ex. P-D).
[8] State regulations define ICT services as "the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students." 8 NYCRR § 200.6(g). The number of students with disabilities receiving ICT services within a class may not exceed 12. See 8 NYCRR § 200.6(g)(1). In addition, State regulations require that an ICT class must be staffed, at a minimum, with a special education teacher and a regular education teacher. See 8 NYCRR § 200.6(g)(2).
[9] Over the DOE’s objection, I have excused the parents’ late submission of their memorandum of law and fully considered the legal arguments contained therein.
[10] 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;
[11] A second prior written notice, dated June 14, 2018, was mailed to the parents which memorialized the recommendations made at the May 4, 2018 CSE meeting (R. 518-519; Ex. SD-8).
[12] It should be noted that the May 2018 IEP referenced GOLD Assessments conducted on April 30, 2018, which were administered after the “Teaching Strategies Gold” referenced in the March 7, 2018 Educational Progress Report (Exs. P-F, SD-5 at 1).
[13] The conclusion of the March 7, 2018 Educational Progress Report states that, “an IEP meeting is required