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FINDINGS OF FACT AND DECISION
Case Number: 190749
Student’s Name: [Redacted]
District: [Redacted]
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: January 14, 2022
Table of Contents
I. Introduction 3
II. Overview 3 a. Parent’s Position 4 b. District’s Position 5 c. Student History 5 d. Background of the Case 6 e. Legal Background 7
III. Prong I 9 a. Procedural Standard 9 i. Procedural Issue #1: Was the CSE Composition Adequate? 10 ii. Procedural Issue #2: Were the Parents Denied Participation in the Development of the Student’s IEP? 10 iii. Procedural Issue #3: Did the District Properly Evaluate the Student for the Development of an Appropriate IEP? 12 b. Substantive Standard 13 i. Substantive Issue: Was the placement recommendation for the Student Appropriate? 14 c. Prong I Conclusion 18
IV. Prong II 18 a. Legal Issue: Was the Parent’s Unilateral Placement of the Student Appropriate? 18 i. Legal Standard 18 ii. Analysis 19 b. Prong II Conclusion 21
V. Prong III 21 a. Legal Issue: Did the Parent Cooperate with the District? 21 i. Legal Standard 21 ii. Analysis 23 b. Prong III Conclusion 23
I. Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
II. Overview
This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education 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. Florence County Sch. Dist. Four v. Carter 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
The Student’s Parent is pursuing an impartial hearing request and filed a complaint notice dated November 9, 2019. (Ex. A) I was assigned as the IHO on November 12, 2019. The claims in this case are related to the 2019-2020 school year (SY). A hearing was held across multiple days[1]. The Parent submitted exhibits A-M and called three witnesses: the Parent, the Private School Director of Financial Management, and the Head of the Private School. The District submitted exhibits 1-5 and called one witness, the Special Education Teacher.
The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability, Appeal 08-037 and Application of a Child With A Disability, Appeal 10-067, (p. 9, n. 9). a. Parent’s Position In the complaint notice, the Parent alleges the District denied the Student a Free Appropriate Public Education (FAPE) for the 2019-2020 SY. (Ex. A-1) It is the Parent’s assertion that the District’s program recommendation of placement in a 12:1+1 program at a District Specialized School was not reasonably calculated for the Student to receive educational benefits. (Ex.s A-2, A-3) The Parent’s complaint notice particularized several issues[2], the issue I find to be dispositive is whether the District recommended an appropriate placement for the Student.
To remedy these alleged missteps by the District, the Parent seeks reimbursement for the tuition costs relating to the Private School for the 2019-2020 SY. b. District’s Position
It is the District’s position that they offered the Student a FAPE for the 2019-2020 SY. (T. 41) The District alleges that they considered a psychoeducational evaluation, the Student’s diagnosis, the Student’s academic skills, in addition to considering 6:1:1 and 8:1:1 settings in creating their recommendation. (T. 42-44) The District maintains their recommendation of a 12:1:1 setting in a specialized school was appropriate, and that the IEP they developed for the Student was calculated for the Student to receive an educational benefit. (T. 42-44) c. Student History The Student has been diagnosed with Chromosome 18q-[3]. The District classified the Student with “Other Health Impairment”[4] on his January 8, 2019, IEP.
The Student’s scores on the Stanford-Binet Intelligence Scales-5th Ed included the following: Nonverbal IQ, 88 (low average); Verbal IQ, 78 (borderline deficient); Full Scale IQ, 82 (low average); Fluid Reasoning, 100 (average); Knowledge, 66 (mildly deficient); Quantitative Reasoning, 78 (borderline deficient); Visual-Spatial Processing, 79 (borderline deficient); and Working Memory, 103 (average). (Ex. 3-2) The Student’s scores from the Vineland Adaptive Behavior Scales-Survey resulted in the following: Communication, 65 (low); Daily Living Skills, 57 (low); Socialization, 65 (low); and Adaptive Behavior Composite, 62 (low). (Ex. 3-2)
The Student received Early Intervention and preschool services. (T. 190) After turning five, the Student attended public school, but the Parent stated that the Student only remained there for one year because “the school setting was not a right place for him. He was not surviving. They were not providing the right therapies for him. The socialization was not there for him... [and] did not fit into that... mold the school had for him.” (T. 190-191) The Student attended two prior private special education schools before ending up at his current private school. (T. 191-192) The Head of the Private School testified that the Student had negative experiences at his prior schools. (T. 161)
His observed areas of strength include memorizing facts, responding to concrete questions, and simple algebraic equations, and short reading comprehension. The Student has a number of friends in his class, is excellent with adults and is a good self-advocate. (Ex. C-4) The Student takes part in vocational training 2x per week for 1 hour and 50 minutes each with a 1:1 job coach, where he has displayed a strong work ethic and tries to complete his tasks independently. The Student also excels with all his tasks that involve fine motor skills. (Ex. C-3) d. Background of the Case The District held a meeting to develop an IEP for the Student on January 8, 2019. (Ex. C) The District recommended the Student be placed at a District Specialized School, in a 12:1:1 class[5]. The IEP meeting was attended by the Parent, the Special Education Teacher, the Student, the District Representative, the Parent Advocate, the School Psychologist, the Private School Head, and the Private School Educational Supervisor. (Ex. C-21) At the time of the meeting, the Student was attending the Private School. (Ex. C-1) e. Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and
- • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[6]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
III. Prong I a. Procedural Standard The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.
For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.
In evaluating whether the District complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007. i. Procedural Issue #1: Was the CSE Composition Adequate?
Rule The IDEA requires a CSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative; an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student; and if appropriate, the student. See SRO 21-165 (see 20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]).
Analysis
The attendance page of the IEP indicates that the following were present at the IEP meeting: the Special Education Teacher, the Parent, the District Representative, the Student, the Parent Advocate, the School Psychologist, the Head of the Private School, and the Private School Educational Supervisor. (Ex. C-21)
Conclusion
I find that the CSE was duly constituted, all the necessary parties attended the IEP meeting, and that the CSE composition comports with IDEA. ii. Procedural Issue #2: Were the Parents Denied Participation in the Development of the Student’s IEP?
Rule
Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] [noting that "[a] professional disagreement is not an IDEA violation"]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] [finding that "[m]eaningful participation does not require deferral to parent choice"]).
Analysis
The concerns of the Parent regarding the needs of the Student are listed on the IEP. (Ex.s C-3, C-4, C-5) The IEP also lists the Parent as having attended the IEP meeting. (Ex. C-21) Additionally, the Parent was accompanied by a Parent advocate, the Head of the Private School, and the Educational Supervisor of the Private School. (Ex. C-21)
Conclusion The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015], SRO 21-171. I find that the Parent was not significantly impeded the opportunity to participate in the decision-making process. iii. Procedural Issue #3: Did the District Properly Evaluate the Student for the Development of an Appropriate IEP?
Rule
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]). SRO 21-130
Analysis
The CSE used the Student’s progress report from the Private School in addition to PT and OT progress reports from the Private School. (Ex. C) The CSE also used a psychological evaluation conducted on April 15, 2018, in developing the IEP. (Ex. C)
Conclusion
I find that the District’s use of evaluative materials was appropriate, if not perfect. In any event, the alleged shortcomings did not impede the Student’s right to a FAPE, did not significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. b. Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child with a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley) The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]). i. Substantive Issue: Was the placement recommendation for the Student Appropriate?
Rule In short, IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra. In this case the District failure lies in their lack of responsiveness. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. 16-028; SRO No. 11-091; SRO No. 11-053
Analysis
Without deciding, it is arguable that the District’s “programming recommendation” in this case was satisfactory. Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).
In this case, however, the central issue is whether the District could provide an appropriate “educational setting”. (The bricks and mortar recommendation) The Parent raised concerns immediately following their visit to the proposed placement, (Ex. D) in their 10-day notice (Ex. E) and then again in their complaint notice, (Ex. A) and during testimony. The District did not call a witness to respond to any of the Parents’ concerns in this regard.
The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y., 584 F.3d at 419; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct 29, 2014]).[7]
But in this case the Parents’ concerns are not speculative. The record demonstrates that real concerns exist about the ability of the recommended placement to accommodate the recommended program for this student. The Student’s IEP highlights that the Student possesses the ability to function at a high level, which is indicated by his strong working memory, his ability understand banking and writing checks, his ability to use technology, his ability to socialize, and partaking in activities such as riding a bike, visiting friends and karate. (Ex.s C-2, C-3) The reason for the 12:1:1 placement recommendation is to avoid distractions provide an educational setting that would assist in neutralizing the Student’s deficits and ameliorate the behaviors that interfered with the Students learning.
But the Parent testified that when she visited the recommended placement, (T. 201) although the class size was small and there were multiple paras in the class, the class also contained three of four children that were very behavioral and had outbursts, which required the paras to hold them down, causing a disturbance to the class. (T. 201) Additionally, the class had two students who were not verbal. (T. 201) This milieu is contraindicated for this Student’s profile.
A district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).
The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245;). Permissible prospective challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x 3 at 5).
The Second Circuit also indicated that such challenges are only appropriate if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 222 F. Supp. 3d 326, 338 [S.D.N.Y. 2016]; L.B. v. New York City Dep't of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]). SRO 21-201 The Parents raised specific, fact-based, observable details about their concerns with the proposed District school placement, before making their unilateral placement decision. The School Location Letter outlined the Parent’s concerns for the Student regarding the recommended placement including specific concerns regarding transitional services that were raised during the CSE meeting (See IEP, pp. 3-4, 7):
The classes observed were functioning on a lower academic and social level than [the Student] In one of the classes severe behavioral outbursts were noted which would negatively impact [the Student’s] performance. [The Student] is a relatively strong student. He would not be challenged in this environment. In addition, [the Parent] is very concerned about [the Student’s] work training as he transitions into adulthood. [The Student] enjoys working with animals and hopes to work in a grooming salon after graduation. This school’s vocational program is very limited. They do not offer any programs working with animals nor were they willing to offer or create a program for him. Based on the academic levels social discrepancies and vocational opportunities, [the Parent] does not feel that this is an appropriate school placement for [the Student]. (Ex. D)
It is from the context of these concerns that I view the District’s recommendation. All would agree that the Student exhibits some relative strengths academically and particularly as he transitions into post-graduation goals. I, therefore, find that the District was unresponsive to the Parent’s concerns regarding the issue of the District’s placement recommendation. c. Prong I Conclusion
I find that the District’s recommended placement was not appropriate for the Student. I, therefore, rule for the Parent on Prong I.
IV. Prong II a. Legal Issue: Was the Parent’s Unilateral Placement of the Student Appropriate? i. Legal Standard
I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“... [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
ii. Analysis
Head of Private School – Testimony The Head of the Private School testified that the Private School is for students ages 11-21 who have special needs. (T. 156) The Private School offers a vocational program, which gives students the opportunity to go with a one-on-one job coach into the community to participate in an internship in the community. (T. 156) In addition to the vocational program, the Private School offers a curriculum with three separate components to it: classroom instruction in vocational studies, ELA and math as it pertains to real-world application within a classroom instructional setting, and community based vocational experiences. (T. 159-160) The Private School also offers therapeutic services of speech, Occupational Therapy (OT), Physical Therapy (PT), and counseling. (T. 156-157)
The Head of the Private School testified that the Student participated in classroom instruction for the vocational arena twice a week and participated in the community-based vocational internship three times a week. (T. 163) He also testified that the Student needed support when dealing with problem-solving, personal, and social-emotional issues that came up in the work setting, but that the Student really enjoyed the work and was motivated to prove himself in the workplace. (T. 164) Regarding the classroom setting, the Head of the Private School testified that a large class size would be detrimental to the Student because he gets easily overwhelmed by outside stimuli and has a difficult time interpreting social interactions. (T. 168)
Overall, the Head of the Private School said that the Student had tremendous growth during the SY, with improvement in his ability to interact with peers and to better interpret social cues. (T. 169) The Student also gained more confidence in himself and saw growth in his social-emotional development. (T. 169)
Parent – Testimony The Parent testified that the Private School has been a great setting for the Student and that the Student “... has been thriving. He learns a lot. He feels good about going to school. He... wakes up [and] wants to go to school.” (T. 203) The Parent also said that the Private School gives the Student the “right structure and right foundation... to enable him to be independent in the future, and... to live on his own and not become a burden to society.” (T. 205) b. Prong II Conclusion
I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student and afforded him educational benefit to meet his special education needs.
V. Prong III a. Legal Issue: Did the Parent Cooperate with the District? i. Legal Standard
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 where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148[8]). 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 (Educ. Law § 4404[1][c]; see 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]).
Tuition 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 child from public school, or by written notice ten 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." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) 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]) ii. Analysis The Parent attended the IEP meeting and shared her concerns. (Ex. C) The Parent sent a ten-day notice on June 17, 2019, expressing her intent to unilaterally place the Student at the Private School for the 2019-2020 SY. (Ex. E) In the letter, the Parent informed the District that she would seek funding from the District for the placement. (Ex. E) b. Prong III Conclusion
Upon review of the record, I find that the Parent cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parent in Prong III.
It is therefore ORDERED
- • For the District to reimburse the Parents or directly pay the Private School for tuition and the cost of related services for the 2019-2020 SY upon presentation of proper invoicing for same.
Martin J. Kehoe III, Esq.
Impartial Hearing Officer
Dated: January 14, 2022
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party 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.
Footnotes
[1] February 7, 2020; February 26, 2020; April 23, 2020; June 30, 2020; August 10, 2020; October 29, 2020; November 30, 2020; December 7, 2020; January 25, 2021; February 2, 2021; March 2, 2021; April 13, 2021; April 22, 2021; May 20, 2021; June 22, 2021; July 26, 2021; and September 13, 2021.
[2] The Parent’s allegations include: . The District failed to develop an IEP that was reasonably calculated to confer an educational benefit to the Student for the 2019-2020 SY; and . The Individualized Education Program (IEP) was procedurally flawed resulting in a defective program recommendation and a denial of FAPE. a. The District failed to thoroughly and appropriately evaluate the Student on a timely basis and develop a timely, substantively and procedurally valid IEP, b. The District failed to recommend an appropriate program and placement for the Student for the 2019-2020 SY, c. The IEP cannot be appropriately implemented in the recommended program, d. The District failed to offer the Student timely and appropriate placement and services e. The District failed to develop a Functional Behavior Assessment (FBA) or a Behavioral Intervention Plan (BIP) f. The District failed to appropriately evaluate the Student in all areas of suspected disability. (Ex. A)
[3] In her testimony, the Parent described the Student’s disability “he is speech delayed... low IQ, low muscle tone, processing issues, microcephaly, mild to moderate low muscle tone throughout his body. He has tricuspid and mitral valve regurgitation. He recently started having seizures.” (T. 190)
[4] NYCRR Part 200.1(zz)(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart 200.1 16 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.
[5] Recommended programs and services: Adapted Physical Education, 12:1:+1 (2x week, 33x week); Counseling Services, Individual (2x40); Occupational Therapy, Individual (2x40); Physical Therapy, Individual (2x40); Speech Language Therapy, Individual (2x40); and Speech Language Therapy, Group of 3 (1x40).
[6] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
[7] The Second Circuit has held that a district's assignment of a student to a particular public school site is an administrative decision that must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F., 746 F.3d at 79 [holding that, while parents are entitled to participate in the decision making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The district is required to implement the IEP and parents are well within their rights to compel a non-compliant district to adhere to the terms of the written plan (20 U.S.C. §§ 1401[9][D]; 1414[d][2]; 34 CFR 300.17[d]; 300.323; 8 NYCRR 200.4[e]).
[8] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))