The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-101

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

Appearances:
Shebitz Berman & Cohen, P.C., attorney for petitioner, Matthew J. Delforte, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, Esq., of counsel 

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's tuition costs at the Beacon School (Beacon) for the 2005-06 school year.  The appeal must be dismissed.

            At the time of the impartial hearing, the child was four years old and attending a private nursery school program at Sephardic Community Center, where he received 15 hours per week of special education itinerant teacher (SEIT) services, occupational therapy (OT) three times a week, physical therapy (PT) twice a week and speech therapy four times a week from the Department of Education, having received services since he was an infant (Tr. pp. 15-16).  The child's eligibility for special education services and classification as a child with a speech or language impairment are not in dispute (see 8 NYCRR 200.1[zz][11]; Parent Ex. B at p. 1). 

The child is described in the record as having sensory processing delays that cause him to engage in sensory seeking behavior that often involves inappropriate touching (Parent Ex. B at p. 18).  Teachers report that the child exhibits attentional deficits that require frequent redirection (id.).  Identified deficits in fine motor and visual perceptual skills interfere with his ability to replicate age-appropriate patterns, and decreased upper extremity strength and tone interfere with his ability to maintain upright posture and perform gross and fine motor tasks (Parent Ex. B at pp. 5, 18, 19).  The child's speech intelligibility is impeded by initial and final consonant deletions and he expresses frustration when he cannot make himself understood by screaming, crying and hitting (Parent Ex. B at pp. 4, 12). 

            On March 18, 2005, respondent's committee on special education (CSE) met to develop an individualized education program (IEP) for petitioner's son for the 2005-06 school year and petitioner was present (Tr. p. 12).  At petitioner's request, an additional CSE meeting was convened on May 4, 2005, and those in attendance included petitioner, a parent member and the education advocate who later represented petitioner at the impartial hearing (Tr. p. 13; Parent Ex. B at p. 2).  The CSE classified the child as a child with a speech or language impairment (Parent Ex. B at p.1) and developed an IEP that placed him in a 12:1+1special class in a community school with related services (Parent Ex. B at pp. 1-2).  The 2005-06 IEP provided the child with related services consisting of 30 minutes of OT three times a week, 30 minutes of PT twice a week, and 30 minutes of speech/language therapy four times a week (Parent Ex. B at pp. 16-17).  Petitioner received a copy of the IEP and Notice of Recommendation on May 4, 2005 (Parent Ex. B at p. 2).  The appropriateness of the IEP has not been disputed procedurally or substantively by petitioner.

   Respondent asserts that a Final Notice of Recommendation, dated June 7, 2005, informing the petitioner of the specific school that the CSE recommended the child attend, was mailed to petitioner on that date (Tr. p. 8; Parent Ex. A).  Petitioner testified that she did not receive a Final Notice of Recommendation for her son in June 2005 (Tr. p. 12).  Petitioner further testified that she located Beacon as a placement for her son for the 2005-06 school year, after attempting to reach respondent by telephone without success (Tr. p. 21).  The Commissioner of Education has not approved Beacon as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7). Petitioner testified that she thereafter received a Final Notice of Recommendation from respondent for the first time on July 20, 2005, marked "second notice" (Tr. pp. 12, 21; Parent Ex. A). 

An impartial hearing was held on August 2, 2005.  At the impartial hearing petitioner asserted that the delay in petitioner's receipt of the Final Notice of Recommendation constituted a denial of a free appropriate public education (FAPE) and warranted tuition reimbursement for petitioner's unilateral placement of the child at Beacon for the 2005-06 school year.  Petitioner's argument at the impartial hearing was not that a FAPE was not offered, but that a FAPE was not offered in a timely manner.  Respondent argued that the Final Notice of Recommendation was timely mailed to petitioner, that even if it was received in July, such a delay would not constitute a denial of a FAPE, and that a FAPE had been offered to petitioner's son by virtue of the 2005-06 IEP, which was entered into evidence. 

The impartial hearing officer credited petitioner's testimony regarding late receipt of the Final Notice of Recommendation, but held that, despite this initial delay with the Final Notice of Recommendation, the district had offered her son a FAPE for the 2005-06 school year (IHO Decision, pp. 3-5). 

Petitioner appeals and asserts that respondent failed to meet its burden at the impartial hearing to establish it had offered an appropriate program to petitioner's son, that the impartial hearing officer improperly shifted the burden of proof on this issue to petitioner, and that petitioner is entitled to tuition reimbursement by virtue of respondent having missed a deadline for providing a Final Notice of Recommendation.  Respondent submitted an answer with defenses, asserting that a FAPE was offered, that petitioner failed to establish the appropriateness of her unilateral placement and that the equities do not favor petitioner.

A purpose behind the Individuals with Disabilities Education Act (IDEA)1 (20 U.S.C. 1400 - 1487) is to ensure that all students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).2  A board of education may be required to reimburse parents for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192  [2d Cir. 2005]).  To obtain private school reimbursement, there must be a finding by a court or impartial hearing officer that the district "had not made a free appropriate public education available to the child in a timely manner" (20 U.S.C. 1412[a][10][C][ii] (emphasis added)).  A FAPE is defined in relevant part as special education and related services that "[a]re provided in conformity with an IEP that meets the requirements of Secs. 300.340300.350" (34 C.F.R. 300.13[d]).  An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401[11]; 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]).  At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. 1414[d][2]; see also 34 C.F.R. 300.342[a]; Cerra, 427 F.3d at 194 (". . . the District fulfilled its legal obligations by providing the IEP before the first day of school.")).

 A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).

The only issue raised in petitioner's hearing request is timeliness of a "site recommendation" (Parent Ex. C).  The child's classification and program recommendation are referenced in the hearing request but are not challenged (id.).  Petitioner has never asserted that the IEP did not offer a FAPE to the child.  Because the appropriateness of the IEP was not contested, respondent could have limited its proof at the impartial hearing to the timeliness issue.  Further, petitioner effectively conceded her opinion of the appropriateness of the IEP at the impartial hearing and made clear it was not at issue when she acknowledged that the placement she selected offered the same special education services, and in the same proportion, as those offered by respondent (Tr. p. 22).

On appeal, without citing authority, petitioner references a June 15, 2005 deadline for respondent to provide a Final Notice of Recommendation as applicable in the present case and as providing justification for private school tuition reimbursement for her son if respondent missed the deadline.  Respondent argues that the deadline was met, that the deadline is not a statutory requirement but a guideline, and that in any event respondent offered a FAPE to petitioner's son.  At the hearing respondent implied that the deadline referenced by the parties has its genesis in Jose P. v. Ambach (Tr. p. 46) (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) but offers no authority or guidance in support of that reference.  However, the fact that Beacon is not an approved school would preclude payment of tuition under Jose P. (see, e.g., Application of the Bd. of Educ., Appeal No. 96-14).  Therefore, as the impartial hearing officer correctly recognized, the missed deadline is not dispositive (IHO Decision, p. 4). 

The June 15 deadline is not prescribed by IDEA in statutory, regulatory or case law (see Cerra, 427 F.3d at 193-94).  The sole issue raised by petitioner as the basis for requesting the impartial hearing, a missed deadline for mailing a Final Notice of Recommendation, has not been established by petitioner to constitute a ground for concluding that a FAPE was denied.  Petitioner has cited no authority that establishes that a delayed Final Notice of Recommendation, which arrived prior to the school year commencing, by itself provides a basis to conclude that a FAPE was denied (see Parent Exs. A, B). 

I concur with the impartial hearing officer that petitioner's request for tuition reimbursement for the 2005-06 school year is properly denied. 

I have considered petitioner's remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

December 7, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

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, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. 1401(8).