The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-062

 

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 Board of Education of the Yonkers City School District

 

 

 

Appearances:

Law Offices of George Zelma, attorney for petitioner, George Zelma, Esq., of counsel

 

Donaghue, Thomas, Auslander & Drohan, attorney for respondent, Ana I. Gonzalez, Esq., of counsel

DECISION

            Petitioner appeals from two decisions of an impartial hearing officer which denied her request to be reimbursed for her son's tuition costs at the Villa Maria Education Center (Villa Maria) for the 2005-06 school year and held that Villa Maria was not the child's pendency placement.  The appeal must be dismissed.

            At the time of the impartial hearing, the child was ten years old and enrolled in the fifth grade at Villa Maria in Stamford, Connecticut (Tr. pp. 51, 129).  The Commissioner of Education has not approved Villa Maria as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).  The child has a history of a non-verbal learning disability, a visual perception weakness and graphomotor difficulties (Tr. p. 50).  He also has deficits in writing, reading comprehension and handwriting skills (Parent Ex. B at p. 3).  The child's eligibility for special education services as a student with a learning disability (see 8 NYCRR 200.1[zz][6]) is not in dispute.

            The child attended public school in respondent's district from preschool until completion of the third grade (Tr. p. 101).  While in second grade, the child was classified as a student with a learning disability (Tr. p. 102).  During the 2003-04 school year, his third grade year, he was enrolled in an inclusion program in the district (Tr. p. 103; Ex. BB at p. 17)1.  Petitioner unilaterally placed the child at Villa Maria for the 2004-05 school year (Tr. p. 109).

            After she enrolled her son at Villa Maria, petitioner requested an impartial hearing seeking reimbursement for tuition and costs for the 2004-05 school year (Ex. BB at pp. 34-41).  The impartial hearing commenced on February 4, 2005, the matter was settled on the record, and the parties later entered into a signed stipulation of settlement (Ex. BB at pp. 34-45).  The settlement agreement indicated that the district agreed to pay $28,000 to petitioner and her husband representing the child's tuition at Villa Maria for the 2004-05 school year in addition to a portion of their attorneys' fees (Ex. BB at p. 44).  The parties agreed that the settlement was limited to the 2004-05 school year (Ex. BB at pp. 36, 44).

            On March 17, 2005, petitioner entered into an enrollment contract with Villa Maria for the 2005-06 school year (Tr. p. 143; Parent Ex. I).

            On May 10, 2005, respondent's Committee on Special Education (CSE) convened for an annual review for the child and to develop a program for the 2005-06 school year (fifth grade) (Parent Ex. B).  The individualized education program (IEP) developed as a result of that meeting is the IEP in dispute in this proceeding.  For the child's present levels of performance, the IEP indicated that he had difficulties in basic reading skills, reading comprehension, and written expression (Parent Ex. B at p. 3).  The CSE recommended a mainstream skills program with a student-to-teacher ratio of 15:1, weekly counseling for 30 minutes in a group of five, weekly occupational therapy for 30 minutes in a group of five, and weekly occupational therapy on an individual basis for 30 minutes (Parent Ex. B at p. 1).  Recommended program modifications included modified homework assignments, checking for understanding, use of a graphic organizer, refocusing and redirection, modified curriculum, and preferential seating (id.).  The child was also afforded the following testing modifications: extended time (2.0) in a separate location with minimal distractions, use of a calculator as needed, tests to be administered in a small group, use of large print format, and directions read/explained (Parent Ex. B at p. 2).  Resource services that focused on reading were also recommended (Parent Ex. B. at p. 6; Tr. p. 204).  The IEP also contained goals and objectives related to study skills, reading, writing, mathematics and social skills (Parent Ex. B at pp. 6-8).

The May 2005 IEP was mailed to petitioner on June 1, 2005 (Ex. BB at p. 62).  By letter dated June 26, 2005, petitioner and her husband notified the CSE Chairperson that they received the IEP, and had observed the mainstream skills program that was proposed for their son (Parent Ex. D).  They informed the CSE Chairperson that they believed that the placement recommended by the CSE was not appropriate (id.).  Petitioner and her husband further explained that their son required a "very structured classroom setting and structured daily routine for his core subjects" (id.).  In light of the foregoing, they stated that their son would remain at Villa Maria and requested transportation for the 2005-06 school year (id.).

By letter dated August 19, 2005, petitioner and her husband informed the Executive Director of Pupil Services and Special Education for the Yonkers City School District that they intended to unilaterally enroll their son in Villa Maria for 2005-06 school year, and that they would require transportation (Parent Ex. E).  They further asserted that the proposed program was not appropriate for their son, because, in their opinion, the teaching methodology employed did not address his learning disability.

Through her attorney, petitioner requested an impartial hearing on October 15, 2005 (Ex. BB at pp. 68-69).  By decision and order dated November 3, 2005, an impartial hearing officer deemed petitioner's request for an impartial hearing to be insufficient (Ex. BB at pp. 71-72).  The impartial hearing officer found that she failed to provide respondent with clear and specific notice of the nature of the problem by failing to list the reasons why respondent's proposed program was not reasonably calculated to confer sufficient educational benefit (Ex. BB at pp. 71).  She granted petitioner leave to amend her due process complaint and ordered her to serve the amended complaint by November 17, 2005 (Ex. BB at p. 72).

            By letter dated November 15, 2005, petitioner amended her request for an impartial hearing seeking tuition reimbursement for the 2005-06 school year (Parent Ex. A).  In her amended request for an impartial hearing, petitioner sought, among other things, an order naming Villa Maria as the child's pendency placement for the course of the litigation.  In addition, she contended that the IEP generated as a result of the May 2005 CSE meeting was procedurally and substantively flawed and that the CSE failed to offer her son an appropriate program.

            An impartial hearing was held on April 3 and April 4, 2006.  The impartial hearing officer did not convene an impartial hearing for the pendency issue, but did request submissions from the parties.  On April 6, 2006, he rendered an interim decision on pendency, in which he determined that the child's pendency placement was created by the 2003-04 IEP, the last unchallenged IEP (IHO Decision 4/6/06).  Specifically, the impartial hearing officer found that petitioner waived any future claim that placement at Villa Maria had become her son's pendency placement, due to waiver provisions contained in the settlement agreement reached on February 4, 2005 (IHO Decision 4/6/06, p. 5).

            By decision dated May 23, 2006, the impartial hearing officer denied petitioner's request for tuition reimbursement for the 2005-06 school year (IHO Decision 5/23/06, p. 7).  He concluded that petitioner failed to meet her burden of persuasion that respondent failed to offer her son a free appropriate public education (FAPE) (IHO Decision 5/23/06, pp. 6-7). 

            On appeal, petitioner disputes both the April 6, 2006 impartial hearing officer decision regarding pendency and the May 23, 2006 decision regarding tuition reimbursement for the 2005-06 school year.  Petitioner requests reversal of both decisions and seeks an order granting tuition reimbursement for her son's 2005-06 school year at Villa Maria.  In her request for an impartial hearing, petitioner asserted that respondent must continue to reimburse her for her son's tuition until she has exhausted her due process remedies because Villa Maria is the child's pendency placement during the course of the litigation (Parent Ex. A at p. 3).  However, in her petition for review, petitioner did not advance any reasons in support of the bare assertion that   the impartial hearing officer's decision on pendency must be overturned.2  At the impartial hearing petitioner argued that Villa Maria constitutes the child's pendency placement for the 2005-06 school year (see Ex. AA).  Although the impartial hearing officer did not hold a hearing on the matter of pendency, the record indicates that he asked clarifying questions about the parties' positions on the issue during the impartial hearing conducted on April 3-4, 2006.  At the impartial hearing, petitioner's attorney contended that as a result of the stipulation wherein respondent agreed to pay $28,000 to petitioner and her attorney, pendency arose by operation of law (Tr. pp. 18-19).  Respondent argued that, in spite of the settlement agreement, the parties did not agree to placement at Villa Maria (Tr. p. 19).  In addition, respondent's counsel noted that at the time the parties reached an agreement with respect to the 2004-05 school year, she confirmed, on the record, with petitioner's attorney that the settlement pertained exclusively to the 2004-05 school year (Ex. BB at p. 36; Tr. p. 13).

Petitioner also contends on appeal that respondent failed to offer her son a FAPE during the 2005-06 school year, and accordingly, she is entitled to tuition reimbursement.  Specifically, petitioner asserts that the impartial hearing officer erred in finding that little evidence was presented regarding the inappropriateness of the program offered by respondent.  She argues that in reaching his decision, the impartial hearing officer employed an "arbitrary and erroneous misapplication of Schaffer."  Respondent submitted an answer denying petitioner's claims and further requests that petitioner's appeal be dismissed in its entirety.

First, a determination must be made whether the child's pendency placement was that established in the 2003-04 IEP.  For reasons set forth below, I concur with the impartial hearing officer's finding, that pursuant to a settlement agreement between the parties, Villa Maria was not the child's pendency placement for the 2005-06 school year.

The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that a child remain in his or her then current placement, unless the child's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. 1415[j]; 34 C.F.R. 300.514[a]; N.Y. Educ. Law 4404[4]).  Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]).  The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]).  It does not mean that a child must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied, 449 U.S. 1078 [1981]; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 99-90).

Under the IDEA, the inquiry focuses on identifying the child's then current educational placement (Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp 3d 354, 358-359 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2002]; Application of a Child with a Disability, Appeal No. 04-011; Application of the Bd. of Educ., Appeal No. 03-028; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073; Application of the Bd. of Educ., Appeal No. 97-82). The U.S. Department of Education has stated that a child's then current placement would " generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, 211 IDELR 481; see Mackey v. Bd. of Educ., No. 03-7860, 2004 WL 2251796, at *4 [2d Cir. Oct. 7, 2004]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]).  In most cases, the pendency placement will be the last unchallenged IEP (Arlington Central School District v. L.P., 421 F. Supp. 2d 692 [S.D.N.Y. 2006]).  Where there is a subsequent agreement between the parties during the proceedings to change the placement, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement (Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476 [2d Cir. 2002]).  Federal  regulation on pendency specify that "during the pendency of any administrative or judicial proceedings regarding a complaint under [34 CFR 300.507], unless the State or local educational agency and the parents of the child otherwise agree, the child involved in the complaint must remain in his current educational placement."(34 C.F.R. 300.514[c]; see also 8 NYCRR 200.5[l).

            Petitioner asserts that a pendency placement is applicable to the 2005-06 school year as a result of the agreement between parties that provided for tuition reimbursement and attorneys' fees for the 2004-05 school year.  In cases involving stipulations between parents and boards of education, the determinative issue when deciding whether a stipulation becomes the basis for a student's pendency placement is whether the stipulation was explicitly limited to a specific school year or definite time period (Evans v. Bd. of Educ., 921 F. Supp. 1184 [S.D.N.Y. 1996]; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 03-028; Application of the Bd. of Educ., Appeal No. 02-061; Application of a Child with a Disability, Appeal No. 98-25).  In the instant case, the record shows that the settlement agreement at issue set forth a definite time period.

In Zvi D., the Second Circuit determined that the agreement expressly limited the time period the school district had agreed to pay tuition and as such the private school was not the student's pendency placement (Zvi D., 694 F.2d at 907-08; see also Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 9-10 [1st Cir. 1999]; Peter G. v. Chicago Pub. Sch. Dist. No. 299 Bd. of Educ., 2002 WL 818008 *4-*5 [N.D. Ill. 2002]; Mayo v. Baltimore City Pub. Sch., 40 F. Supp.2d 331, 334 [D. Md. 1999]; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 02-061; Application of a Child with a Disability, Appeal No. 98-25). 

In the instant matter, the record reflects that in fashioning this settlement, counsel for respondent asked petitioner's attorney if the settlement was limited to the 2004-05 school year (Tr. p. 9).  Counsel for petitioner confirmed on the record that the settlement was limited to the 2004-05 school year and added that there were no other terms to the agreement (Tr. p. 13; Ex. BB at p. 36).  The record also reflects that the parties' stipulation was intended to settle their differences with respect to the 2004-05 school year and provided explicitly that "the Parents hereby agrees [sic] to forever release and discharge the Yonkers School District from any and all rights, liabilities, claims, demands, actions and/or judgments arising directly or indirectly out of the Parents' referral of her [sic] son [...] to the CSE of the Yonkers School District as such rights relate to the 2004-05 school years [sic] " (Ex. BB at pp. 44-45).  Under the circumstances, I find that the settlement was limited to the 2004-05 school year and I concur with the impartial hearing officer that pursuant to the stipulation, petitioner effectively waived the right to assert any future claims with respect to the 2004-05 school year.  In light of the foregoing, I am unable to find that Villa Maria constitutes the child's pendency placement for the 2005-06 school year, and concur with the impartial hearing officer that the child's pendency placement is that set forth in the child's 2003-04 IEP, the last unchallenged IEP.

I now turn to petitioner's request for tuition reimbursement.  As a preliminary matter, I note that the impartial hearing occurred after the United States Supreme Court issued its Schaffer v. Weast decision in which the Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief" (Schaffer v. Weast, 126 S. Ct. 528, 537 [2005]).  The Court rejected the argument that every IEP is assumed invalid until the school district demonstrates that it is not (Schaffer, 126 S. Ct. at 536).  Accordingly, petitioner, as the party seeking relief at the impartial hearing, has the burden of persuasion to demonstrate that respondent failed to offer the student a FAPE.

A purpose behind the IDEA (20 U.S.C. 1400 - 1487)3 is to ensure that 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]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[9]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]).4

A FAPE is offered to a student when (a) the board of education 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 Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132).  The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ. of the Granville Central School District, Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

            Petitioner asserts on appeal that the impartial hearing officer misapplied the Supreme Court's ruling in Schaffer v. Weast.  An independent reading of the record reveals that during the impartial hearing, petitioner did not demonstrate by a preponderance of the evidence that her son was not offered a FAPE, thereby failing to sustain her burden of persuasion.  Notwithstanding petitioner's opinion that the May 2005 IEP was not reasonably calculated to meet the child's educational needs, the record demonstrates that respondent offered him a FAPE.  First, the record does not contain any procedural inadequacies that resulted in a denial of FAPE, nor does it indicate that petitioner was denied an opportunity to meaningfully participate in the formulation of the May 2005 IEP (see Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 [2d Cir. 2005]; see also Viola v. Arlington Cent. Sch. Dist., 2006 WL 300449 [S.D.N.Y. 2006]).  On the contrary, the record shows that petitioner took an active role in the development of her son's IEP.  She attended the May 2005 CSE meeting, accompanied by an educational advocate (Tr. p. 134).  Petitioner did not present any evidence indicating that she was denied an opportunity to review and contribute to the IEP goals and objectives.  Petitioner also testified that she observed the classroom recommended for her son and interviewed the teacher (Tr. p. 123).  She also visited the recommended resource room and met with the teacher (Tr. p. 130).

            Respondent asserts that during the impartial hearing petitioner attempted to establish the inappropriateness of the IEP by presenting evidence intending to show the appropriateness of Villa Maria.  Evidence of the alleged appropriateness of a private school placement does not establish that the program offered by a local educational agency is inappropriate (see, e.g., Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1037 [3d Cir. 1993]).  A review of the record indicates that petitioner attempted to establish that the program recommended by respondent's CSE was inappropriate through Villa Maria's admissions director and the child's tutor, who was also from Villa Maria.  Neither of these witnesses was familiar with the program recommended by the May 2005 CSE (Tr. pp. 73, 98).  After having conducted an independent review of the May 2005 IEP, I find that the proposed program was based upon sufficient, current evaluative material (Parent Ex. B at p. 6) and was reasonably calculated to meet the child's special education needs.

In light of the foregoing, I concur with the impartial hearing officer's finding that petitioner failed to establish that the 2005-06 IEP was not reasonably calculated to enable the child to receive educational benefits.  Lastly, contrary to petitioner's assertions that the impartial hearing officer misapplied the burden of persuasion as established in Schaffer, based upon my review of the entire record, I find that the impartial hearing officer employed the proper legal analysis in determining whether petitioner sustained her burden of persuasion that her son was denied a FAPE.

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

            THE APPEAL IS DISMISSED.

 

        Dated:             Albany, New York                                                  __________________________

                                August 10, 2006                                                     PAUL F. KELLY

                                                                                                                STATE REVIEW OFFICER

 

1  For the purposes of this appeal, Ex. AA refers to Petitioner's Brief in Support of Pendency, and Ex. BB refers to Respondent's Memorandum of Law in Support of Dismissing Pendency Claim, which the impartial hearing officer admitted into evidence prior to the record close date of May 9, 2006.

2 I note that petitioner's reference to the impartial hearing officer's April 6, 2006 decision on pendency in her appeal did not clearly indicate the reasons for challenging the impartial hearing officer's decision (see 8 NYCRR 279.4[a]) nor did she provide any legal authority supporting her request that I overturn the impartial hearing officer's finding on pendency.  Petitioner's counsel is cautioned that failure to comply with the pleading requirements of 8 NYCRR 279.4[a] is grounds for dismissal of the claim asserted.  I have refrained from dismissing the pendency claim on procedural grounds in the instant case because I dispose of the matter on the merits.

3 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 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647).  The relevant events in the instant appeal relating to the development and substance of the May 10, 2005 IEP took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply to the development or substance of the IEP.

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, or secondary school education in the State involved; and,

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

20 U.S.C. 1401[9]; see also 34 C.F.R. 300.13; 20 U.S.C. 1414[d].