NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number: 160839
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 24, 2016
September 7, 2016
April 20, 2017
November 19, 2018
October 4, 2019
November 12, 2019
Actual Record Close Date: December 30, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 20, 2017
For the Student:
Advocate (via telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 19, 2018
For the Student:
Advocate
For the Department of Education:
District Representative
school Psychologist (via telephone)
school Psychologist (via telephone)
special Education Teacher (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 4, 2019
For the Student:
Advocate
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 12, 2019
For the Student:
Advocate
parent
For the Department of Education:
None
I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the advocates for the student and the parent in a due process complaint notice dated June 22, 2016. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) shall be ordered to reimburse the parent, and/or directly fund, costs associated with the student’s unilateral private placement at for the 2014/15 and 2015/16 school years (Exs. P-A, P-Q).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“JEP”), which is delegated to a local committee on special education (the “CSE”’) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 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)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such as “Ex.” student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”’) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(G)(3)(v), (vii), (xil).
The THO 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(G)(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).
Il. PROCEDURAL HISTORY
In an Order dated July 1, 2016, Impartial Hearing Officer consolidated the parent’s 2014/15 school year claim ( ) with her claim concerning the 2015/16 school year ( ) (Ex. THO-I), both of which were filed on the same day (Exs. P-A, P-Q). On September 19, 2016, the DOE appointed me to serve as the IHO in this matter following the recusal of [HO . See 8 NYCRR § 200.5(j)(3)G). Hearings on the merits of the matter were thereafter held on: April 20, 2017; November 19, 2018; October 4, 2019; and November 12, 2019.2 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See
8 NYCRR § 200.5(j)(5)(v).
Hil. FACTUAL BACKGROUND
At the time of the June 22, 2016 due process complaints, the student was years old and has been diagnosed with an Attention Deficit Hyperactivity Disorder (“ADHD”) (Exs. PA, P-Q, P-BB at 1). For the 2014/15 and 2015/16 school years, the student was enrolled by his parent at (Exs. P-K, P-W), which has not been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with an other health impairment is not in dispute in this hearing (Exs. P-A, P-Q, SD-1 at 1, SD-9 at 1). See 34 C.F.R. § 300.8(c)(10); 8 NYCRR § 200.1(zz)(10).[3]
The student’s cognitive functioning was measured in March 2012 using the WPPSI-III.
On that assessment, the student achieved the following scores: Verbal IQ — 114 (82TM percentile);
C.F.R. § 300.515(c); 8 NYCRR § 200.5(G)(5).
Performance IQ — 105 (63 percentile); and Full Scale IQ — 112 (79 percentile). At the same time, the student’s academic skills were measured using the Kaufman Survey of Early Academic and Language Skills (“K-SEALS”). On that assessment, the student achieved the following scores: Vocabulary — 110 (75TM percentile); Number, Letter & Words — 85 (16" percentile);
Expressive Language Skills — 97 (42 percentile); Receptive Language Skills — 91 (27" percentile); Number Skills — 94 (24"" percentile); Letter & Word Skills — 81 (10 percentile) (Ex.
SD-1).
During the 2013/14 school year, the student attended a blended first/second grade class at , a private, special education in (Exs. SD-1 at 1, SD-2). There were boys in the class, a teacher, a teaching assistant and a 1:1 para for the student (Ex.
SD-2). The student’s teacher at estimated his functioning in reading, writing and math, as of May 2014, to be at the first (1") grade level (Exs. SD-1 at 2, SD-6, SD-14).
On May 29, 2014, the CSE convened to develop an IEP for the student for the 2014/15 school year. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a community school on a ten (10) month basis with the support of a 1:1 crisis management paraprofessional. The CSE also recommended that the student receive related services of: individual counseling, one time per week for thirty (30) minutes per session; group (3:1) counseling, one time per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; and group (3:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Exs. SD-1 at 13-14, 17-19, SD-15). At the May 2014 meeting, the CSE also identified several problem deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10). behaviors which interfered with the student’s learning or that of others, e.g., foul language, verbally aggressive (Exs. SD-1 at 5, SD-4), and developed a behavior intervention plan to address those behaviors (Ex. SD-5).
On July 16, 2014, the DOE advised the parent that the student’s recommended program would be implemented at in (Exs. P-F, SD-16). On August 20, 2014, the parent’s advocate filed a ten day notice on her behalf, advising the DOE that the parent was rejecting the IEP and would unilaterally place the student at the during the 2014/15 school year (Ex. P-G). On September 3, 2014, the parent signed an enrollment contract for the student to attend for the 2014/15 school year (Ex. P-K). On September 4, 2014, the parent sent the DOE a note that the student would attend (rather than ) (Ex. SD-8). On September 8, 2014, the parent visited the student’s proposed program at . In a note to the DOE, dated October 6, 2014, the parent stated that she did not find the proposed program to be academically appropriate and expressed concern over the level of supervision of the students during lunch and recess (Ex. P-F).
The student attended for the duration of the 2014/15 school year, where he received secular and instruction, along with related services of occupational and speech therapies (Exs. P-H, P-I, P-J, P-K, P-L, P-M, P-N, P-DD).
In February and March of 2015, the student participated in a private psycho-educational assessment. The student’s cognitive functioning, as measured by the Woodcock-Johnson Test of Cognitive Abilities — 4" Edition, fell within the Low Average range (General Intellectual Ability
— 87, 19" percentile). On the Woodcock-Johnson Test of Achievement — 4" Edition, the student achieved the following scores: Broad Reading — 55 (Very Low); Basic Reading — 66 (Very
Low); Broad Mathematics — 72 (Low); Written Language — 78 (Low) (Ex. P-BB at 33-34).
On May 14, 2015, the CSE reconvened to develop an IEP for the student for the 2015/16 school year. The CSE again recommended that the student receive the majority of his instruction in a 12:1+1 special class in a community school on a ten (10) month basis with the support of a 1:1 crisis management paraprofessional. The CSE also recommended that the student receive related services of: individual counseling, one time per week for thirty (30) minutes per session; group (3:1) counseling, one time per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; and group (3:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Exs. SD-9 at 9-10, 13-14, SD-10). The CSE continued to recommend behavioral supports for the student (Exs. SD-12, SD-13).
On August 18, 2015, the parent’s advocate filed a ten day notice on her behalf, advising the DOE that the parent was rejecting the IEP and would unilaterally place the student at during the 2015/16 school year (Ex. P-S). On September 9, 2015, the parent signed an enrollment contract for the student to attend for the 2015/16 school year (Ex. PW). The student attended for the duration of the 2015/16 school year, where he received secular and instruction, along with related services of occupational and speech therapies (Exs. P-T, P-U, P-V, P-W, P-X, P-CC, P-EE).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s request for tuition reimbursement and/or direct payment for her unilateral placement of the student at during the 2014/15 and 2015/16 school years should be denied. The hearing record demonstrates that the CSE created IEPs for the student during the 2014/15 and 2015/16 school years which were reasonably calculated to provide him with educational benefit in the least restrictive environment. The student’s unilateral placement at , in contrast, was not educationally appropriate. The relevant equities also mitigate against a tuition reimbursement award (R. 49-52).
B. The Parent
The DOE should also be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at for the 2014/15 and 2015/16 school years. The CSE failed to develop appropriate educational programs for the student. In contrast, appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to (Exs. P-A, P-G, P-Q, P-S).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”’) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C.
§ 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).4
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.
See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); RE. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"TA |dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."". Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an JEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir.
2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)Gi); 34 C.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5G)(4)@i); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 4.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 ( N.Y. Aug. 21, 2008), affd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)Q), 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 JEP 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)(); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(1), (2)()(A); 8 NYCRR § 200.4(d)(2)(ii1), 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).
U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M-P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Proposed Public Program — 2014/15 School Year
Based on the evidence contained in the hearing record, I find that the CSE offered the student a free appropriate public education for the 2014/15 school year.
1. CSE Composition
The parent asserts that the May 2014 CSE was not duly constituted, but does not specify which required member was absent (Exs. P-A, P-G). A review of the May 2014 IEP reflects that the attendees at the May 29, 2014 CSE meeting included: , a special education teacher who served as the district representative; Ms. , a school psychologist; , the student’s classroom teacher at ; ; Clinical Director and counselor at ; , the Principal of the and the parent (R. 57; Ex. SD-1 at 21). Given this record, I find that the May 2014 CSE was duly constituted.
2. Sufficiency of Evaluative Information
Turning to the parent's assertion that the May 2014 CSE failed to consider sufficient evaluative information in developing the student's May 29, 2014 IEP, an evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. 300.304(b)(1). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C.
§ 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vi1), and the evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C..F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3). No single measure or assessment should be used as the sole criterion for determining an appropriate educational program for a student. See 8 NYCRR § 200.4(b)(6)(v).
Among the 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)G)(); 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); see also 8 NYCRR § 200.1(ww)(3)(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). On the basis of its review, a CSE must "identify what additional data, if any, are needed to determine," among other things, "the present levels of academic achievement" of a student. See 20 U.S.C. § 1414(c)(1)(B). Any additional assessments need only be conducted if found necessary to fill in gaps in the initial review of existing evaluation data. See 20 U.S.C. § 1414(c)(2).
The evidence contained in the hearing record, including the credible testimony of Ms.
, demonstrates that the May 29, 2014 IEP contained current evaluative data and descriptions of the student consistent with a March 2012 psychoeducational report (WPPSI-III & K-SEALS), a May 7, 2014 classroom observation, as well as progress reports submitted by the student’s teachers and therapists at , as Well as then-current information provided by the student’s teacher and counselor (from ) at the time of the May 2014 CSE meeting (R. 60; Exs. SD-1 at 1-5, SD-2, SD-6, SD-14).
3. Annual Goals
The parent also disputes the appropriateness of the goals contained in the May 2014 IEP (Exs. P-A P-G). An JEP 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)G@)dD; 34 C.F.R. § 300.320(a)(2)G); 8 NYCRR § 200.4(d)(2)(i11). 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)(i11)(b); see also 20 U.S.C. § 1414(d)(1)(A)G)CID; 34 C.F.R.
§ 300.320(a)(3).
Based on the credible testimony of Ms. , I find that the annual goals in the May 2014 IEP targeted the student’s identified areas of need and were sufficiently specific and measurable to guide instruction and to evaluate the student’s progress several times over the course of the school year (R. 62; Ex. SD-1 at 6-12).
4. Consideration of Special Factors—Interfering Behaviors
The parent asserts that the May 2014 CSE failed to administer a functional behavioral assessment (“FBA’’) to the student in an appropriate manner and failed to develop an appropriate behavior intervention plan (“BIP”) for the student to target interfering behaviors (Ex. P-A at 2).[5]
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior. See 20 U.S.C. § 1414(d)(3)(B)q); 34 C.F.R. § 300.324(a)(2)(i); 8 NYCRR § 200.4(d)(3)(i); EH. v. Bd. of Educ., 2009 WL
3326627, at *3 (2d Cir. Oct. 16, 2009); 4.C., 553 F.3d at 172; JA. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009); MM. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008); Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50. To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student.
See 20 U.S.C. § 1414(d)C1)(A)G)TV); 34 C.F.R. § 300.320(a)(4); 8 NYCRR
§§ 200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student. See 8 NYCRR 8§ 200.4(d)(3)(4), 200.22(a)(b).
The evidence contained in the hearing record demonstrates that the May 2014 CSE recommended appropriate interventions to address the student’s interfering behaviors. Ms.
testified that the student exhibited several behaviors which impeded his learning, including impulsivity, verbal aggression, manipulative behaviors and inappropriate peer interactions (R. 78). The CSE sought to replace those behaviors so the student could follow class routines, control his language, respect authority and tolerate the differences of other boys (R. 79).
The May 2014 CSE conducted an FBA and developed a BIP, recommended that the student receive instruction in a structured educational environment with counseling and a crisis management paraprofessional, and recommended program modifications of frequent breaks, prompting, redirection, positive reinforcement, incentives and rewards (R. 79; Ex. SD-1).
occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200/1(mmm).
5. 12:1+1 Special Class Placement in a Community School The evidence contained in the hearing record demonstrates that a 12:1+1 special class in a community school was an appropriate placement for the student for the 2014/15 school year.
Ms. credibly testified that the student would have received specialized instruction in the 12:1+1 program with the support of a 1:1 crisis management paraprofessional (R. 90; Ex. SD-1 at 13). The May 2014 CSE recommended counseling, occupational therapy and speech/language therapy to address the student’s related services needs (R. 88; Ex. SD-1 at 13-14). Ms.
also testified that a community school would be least restrictive educational environment for the student where he would receive support from typically developing students (R. 88; Ex. SD-1 at 17).
Having found that the DOE offered the student a FAPE for the 204/15 school year, the necessary inquiry is at an end and I need not analyze the appropriateness of the parent’s unilateral placement or whether equitable considers support the parent’s claims. See School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 370 (1985); MC. v. Voluntown Bd.
of Educ., 226 F.3d 60, 66 (2d Cir. 2000).
C. Proposed Public Program — 2015/16 School Year
Based on the evidence contained in the hearing record, I find that the CSE failed to offer the student a free appropriate public education for the 2015/16 school year by failing to conduct a required reevaluation of the student, which compromised the CSE’s analysis of the student’s then-present levels of performance and the annual goals it developed for the student. The DOE also failed to communicate a placement offer to the parent. The cumulative impact of these procedural inadequacies impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(i1); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(7)(4)(ii).
1. Failure to Conduct Reevaluation
The parent correctly asserts that the CSE failed to administer necessary evaluations which could form the basis for development of an appropriate IEP (Ex. P-Q). A school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary. See 20 U.S.C.
§§ 1414(a)(2)(b)(4)-(ii); 34 C.F.R. §§ 300.303(b)(1)-(2); 8 NYCRR §§ 200.4(b)(4). At the time of the May 14, 2015 meeting, the CSE had last evaluated the student on March 6, 2012 (Ex. SD-
9 at 1). Although the student was due for reevaluation by March 2015, there was no evidence presented by the DOE of that having occurred. The school psychologist who participated in the May 14, 2015 meeting, Ms. , was unable to explain why the CSE failed to conduct a reevaluation of the student before the May 2015 meeting (R. 128-144).
Alternatively, while it may be appropriate for a CSE to rely on assessments, classroom observations, or teacher reports in circumstances where a student has not been attending a district public school, see S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *10 (S.D.NLY. Nov. 9, 2011), the record here reflects that the only updated information of the student’s thenpresent levels of educational performance before the May 2015 CSE was a “verbal report” given by the student’s special education teacher at (Ex. SD-9 at 2). Given the paucity of evaluative information about the student, I cannot find that the evaluative data in the hearing record was sufficient to develop the student’s IEP for the 2015/16 school year. See Application ofa Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 12 (SRO Feb. 25, 2014).
2. Present Levels of Performance & Annual Goals
The parent also argues that the May 2015 IEP failed to include a sufficient description of the student’s academic, functional and management needs or appropriate annual goals to address the student’s needs (Exs. P-Q, P-S). In the present case, given the DOE’s failure to establish that the May 2015 CSE considered sufficient evaluative data about the student, as discussed above, the dearth of such information in the hearing record precludes meaningful review of the parent’s claims with regard to the sufficiency of the IEP’s description of the student’s academic, functional, and management needs or the appropriateness of the annual goals in the May 2015 IEP. That is, given the above deficiencies with the DOE’s presentation of the information available to the CSE, I decline to simply presume that the May 2015 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 13 (SRO Feb. 25, 2014).
3. Absence of Placement Offer
In her due process complaint, the parent also raises concerns about the DOE’s ability to implement the May 2015 IEP. As no evidence was offered into the hearing record by the DOE of a school assignment for the student, I find that the parent’s concerns are well founded.
Initially, with respect to the school location letter, in general, the IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(11); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 [E.D.N.Y. 2012). Once a CSE formulates an IEP, a school district is required to provide the special education services in conformity with the student's written IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320. When determining how to implement a student's IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation. See K.L.A. v. Windham
Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082 (2d Cir. Mar. 30, 2010); T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir 2009); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).
However, although not explicitly stated in federal or State regulation, implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an the IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Tarlowe, 2008 WL 2736027, at *6 (stating that a school district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless must be shared with the parent before the student's IEP may be implemented. See Application of the New York City Dep’t of Educ., Appeal No. 14-083 at 13 (SRO Jan. 8, 2015).
Here, the hearing record did not include a copy of a prior written notice (“PWN”) of the CSE’s recommendation, a final notice of recommendation (“FNR’”’), or a school location letter. There was no testimony offered of the routine office practice, if any, followed in the applicable
DOE office relative to the mailing of such documents to the parent. I therefore find that DOE failed to mail the parent notice of where the recommended 2015/16 IEP would be implemented.
D. Appropriateness of — 2015/16 SY
Given my finding that the DOE failed to provide the student with a FAPE during the 2015/16 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, a parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007).
Parents secking 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; Walezak, 142 F.3d at 129. “Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See
Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” /d. at 364; see also Gagliardo, 489 F.3d at 115.
A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of (via affidavit), I find that was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (Exs. P-T, P-U, P-V, P-CC, P-EE).
E. Relevant Equities — 2015/16 SY
The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; MC. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C) (1); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); MV. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)aii)(); 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 2015/16 school year. In a letter dated August 18, 2015, the parent’s advocate gave the DOE adequate written notice of her intent to make a unilateral placement of the student at for the 2015/16 school year at public expense (Ex. P-S). See 20 U.S.C. § 1412(a)(10)(C)(iii)(D; 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. SD-1, SD-3, SD-9, SD-10), see 20 U.S.C. § 1412(a)(10)(C) (i), nor was the cost of the student’s tuition at unreasonable given the severity of the student’s needs and services necessary to address those needs (Exs. P-W, P-X, P-Y, P-Z, P-AA), 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 parent’s claim for reimbursement and/or direct payment of the student’s tuition and related service costs to for the 2014/15 school year is DENIED; and The parent’s claim for reimbursement and/or direct payment of the student’s tuition and related service costs to for the 2015/16 school year is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent for all costs associated with the student’s unilateral private placement at for the 2015/16 school year, and shall directly pay the private school for any and all outstanding costs associated with said placement.
Dated: January 9, 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
Due Process Complaint Notice ( ), 6/22/16, 4 pgs.
TADCAOMYNRHPEOMVXO>SZZO
Program Description, undated, 3 pgs. [Reserved] [Reserved] [Reserved]
School Location Letter w/ note, 7/16/14, 2 pgs.
Ten Day Notice, 8/20/14, 3 pgs.
Student Progress Report, 6/2015, 2 pgs.
Student Report Card, 2014/15, 1 pg.
Class Schedule, 2014/15, 1 pg.
Enrollment Contract, 9/3/14, 4 pgs.
Related Services Costs, 9/3/14, 1 pg.
Related Services Affidavits, 10/7/15, 2 pgs.
Affidavit of Payments, 10/7/15, 1 pg.
U.S. Individual Income Tax Return — Form 1040, 2014, 3 pgs.
Proof-of-Payments, 2014/15, 12 pgs.
Due Process Complaint Notice (Case No. ), 6/22/16, 4 pgs. [Reserved]
Ten Day Notice, 8/18/15, 3 pgs.
Class Schedule, 2015/16, | pg.
Student Progress Report, 6/2016, 2 pgs.
Report Card, 2015/16, 2 pgs.
Enrollment Contract, 9/9/15, 4 pgs.
Related Services Costs, 9/9/15, 1 pg.
Affidavit of Payments, 8/4/16, 1 pg.
U. S. Individual Income Tax Return— Form 1040, 2015, 3 pgs.
AA. Proof-of-Payments, 2015/16, 5 pgs.
BB. Psycho-Educational Report, 3/6/15, 46 pgs.
CC. Attendance Record, 2015/16, 1 pg.
DD. Affidavit of (SEIT - 2014/15), 6/25/19, 6 pgs.
EE. Affidavit of (Teacher — 2015/16), 6/24/19, 6 pgs.
DEPARTMENT OF EDUCATION
Individualized Education Program (IEP), 5/29/14, 21 pgs.
WSRwWNT
Classroom Observation, 5/7/14, 1 pg.
IEP Meeting Minutes, 5/29/14, 1 pg.
Functional Behavioral Assessment (FBA), 5/29/14, 5 pgs.
Behavior Intervention Plan (BIP), 5/29/14, 5 pgs.
School Progress Reports, 5/29/14, 11 pgs.
eND 9. [Reserved]
Letter from parent, 9/4/14, 1 pg.
Individualized Education Program (IEP), 5/14/15, 16 pgs.
10. CSE Meeting Minutes, 5/14/15, 2 pgs.
11. Progress Reports, various dates, 7 pgs.
12. Behavior Intervention Plan, 5/14/15, 5 pgs.
13. Functional Behavioral Assessment, 5/14/15, 6 pgs.
14. School Speech/Language Progress Report, 5/29/14, 4 pgs.
15. Prior Written Notice (Notice of Recommendation), 5/29/14, 4 pgs.
16. School Location Letter, 7/16/14, 1 pg.
IMPARTIAL HEARING OFFICER
I. Order
on Consolidation (Case Nos. 160839), , 7/1/16, 2 pgs.
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] “Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 39-41, 178-179, 193-195). See 34
[3] 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 toa heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention
[4] ‘The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. 8 NYCRR § 200/l(r). Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior
[8] A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471