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
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's summer program at Camp Lee Mar for summer 2004. The appeal must be dismissed.
At the time of the impartial hearing on March 3, 2006, the student was 15 years old, had attended the Forum School (Forum) for the prior six years, and was scheduled to graduate in June 2006 (Tr. p. 16). Forum is located in New Jersey and testimony indicates that it was approved for the student as an "emergency interim placement program" (Tr. p. 54). The student's classification is not apparent from the record, but his eligibility for special education is not in dispute.
Petitioner filed a request for an impartial hearing on January 17, 2006 (IHO Ex. 3). The request, as amended at the impartial hearing (Tr. p. 30), noted that summer classes at Forum lasted 17 days and petitioner and the student's father "needed to provide a Special Education camp for [the student]" (IHO Ex. 2) and therefore placed their son at Camp Lee Mar for a period of time during summer 2004. The request asserts that Camp Lee Mar provided structure to provide the related service on the student's individualized education program (IEP) and also provided academic instruction (id.). It also asserts that the student's social skills and independence improved as a result of attending the camp during the summer of 2004 (id.).
The impartial hearing was held on March 3, 2006. At the impartial hearing, petitioner and her husband attempted unsuccessfully to enter their exhibits into evidence (Tr. pp. 5-7, 31-34). Respondent objected to the admission of the documents into evidence based upon the five day disclosure rule, and also objected to an adjournment of the impartial hearing (id.).1 Petitioner and her husband indicated that they were unaware of their need to provide the exhibits to respondent five days prior to the impartial hearing (id.). The impartial hearing officer refused to admit the documents or to adjourn the hearing (id.).
The summer programming for the student for summer 2004 was the issue in dispute at the impartial hearing (Tr. p. 30). No IEP was entered into evidence at the impartial hearing, as detailed above. At the impartial hearing, there was brief discussion of a May 20, 2005 IEP for the student, which recommended a 12-month program, however this was not the IEP that concerned the student's summer 2004 program (Tr. p. 9). It is unclear whether petitioner raised concerns over the summer programming at a Committee on Special Education (CSE) meeting. Petitioner testified that she believed that the programming to be provided by Forum over summer 2004 was inadequate for her son (Tr. p. 62). She testified that Forum offered 15-18 days of programming in July and that her son needed a 30-day program in 2004 (Tr. pp. 36, 62). She acknowledges never giving notice to respondent of her dissatisfaction with the IEP's offered summer programming, and states that she was unaware that such notice was required (Tr. pp. 10-12).2
Petitioner presented testimony from one of the camp co-directors from Camp Lee Mar, the summer program she had unilaterally selected for the student for summer 2004 (Tr. pp. 38-45). Camp Lee Mar was described as a recreational, but also therapeutic residential summer program located in Pennsylvania (Tr. pp. 15, 40). Respondent argued that costs associated with Camp Lee Mar were not appropriately reimbursable because the camp was not a special education program, and because petitioner failed to give proper notice to the CSE prior to her unilateral placement of the student in summer 2004.
The impartial hearing officer denied petitioner's request for reimbursement for the summer 2004 programming because she held that reimbursement could only be granted for extended school year special education programs, and not for a camping and recreational program (IHO Decision, p. 5). She also held that if petitioner had given the CSE notice of her dissatisfaction with the summer program offered by Forum, the CSE could have reconvened to address the issue (IHO Decision, p. 4).
Petitioner appeals and asserts that the impartial hearing officer erred in finding Camp Lee Mar inappropriate and merely recreational despite the testimony regarding the academic instruction offered at the program. Respondent requests that the appeal be dismissed and asserts, inter alia, that petitioner failed to meet her burden of proving that the extended year program offered by Forum was inappropriate and failed to demonstrate that Camp Lee Mar met the student's special education needs.
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S.Ct. 528, 531 ). 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).4 A board of education may be required to reimburse a parent for his or her expenditures 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). A FAPE is offered to a student when the board of education (a) 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ).
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, 427 F.3d at 195, 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 student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 536-37 [finding it improper to assume that every IEP is invalid until the school district demonstrates that it is not]).
Although the record in this matter is sparse, it does provide an adequate basis for purposes of review of the issues raised by petitioner (see, e.g., Application of a Child with a Disability, Appeal No. 02-079).
I concur with the determination of the impartial hearing officer to deny reimbursement to petitioner, but on different grounds. First, petitioner had the burden of persuasion to demonstrate that the summer program offered at Forum for the student was inappropriate and failed to offer the student a FAPE. This was not demonstrated, based on the record. The documentary evidence that petitioner sought to introduce at the impartial hearing would not have remedied this void because it was not evidence demonstrating that respondent's offered program was inappropriate (Tr. p. 32; Pet. ¶ 3). The documentary evidence petitioner sought to introduce was pertinent to Camp Lee Mar and the student's alleged progress at Camp Lee Mar (id.). Evidence of the alleged appropriateness of a private school placement does not establish that the program offered by local educational agency is inappropriate (see, e.g., Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1037 [3d Cir. 1993]).
Further, petitioner also failed to articulate any basis why a 30-day program at Camp Lee Mar, rather than the 15-18 day program offered by Forum, was necessary for the student to receive a FAPE. Petitioner's testimony at the hearing establishing her dislike of a summer camp that the student had previously attended (Tr. pp. 11-12), along with other testimony not related to the appropriateness of the respondent's offered program, was insufficient to establish by a preponderance of the evidence that the summer program offered by Forum for summer 2004 was inadequate to meet the student's special education needs.
Accordingly, I find that the evidence in the hearing record does not establish that respondent offered the student an inappropriate program for summer 2004. Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Camp Lee Mar was an appropriate placement (Burlington, 471 U.S. at 370).
THE APPEAL IS DISMISSED.
1 Each party has the right to prohibit the introduction of any evidence the substance of which has not been disclosed at least five business days before the hearing (see 8 NYCRR 200.5[j][xii]; see also 34 C.F.R. § 300.509[a]).
2 The cost of reimbursement for a unilateral private school placement may be reduced or denied if parents failed to give notice of their rejection of the public school placement and their intent to place child in private school at public expense, either at IEP meeting, or in writing 10 days prior to removal from public school (20 U.S.C. § 1412[a][C]).
3 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 ). The relevant events in the instant appeal relating to the disputed educational recommendation 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 disputed educational recommendation.
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(8).