The State Education Department State Review Officer www.sro.nysed.gov No. 12-096 Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability Appearances: Michael Best, Special Assistant Corporation Counsel, attorneys for petitioner, Neha Dewan, Esq., of counsel Law Offices of Lauren A. Baum, PC, attorneys for respondents, Lauren A. Baum, Esq., of counsel DECISION I. Introduction This 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. Petitioner (the district) appeals from the decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondents' (the parents') daughter and ordered it to reimburse the parents for their daughter's tuition costs at the Rebecca School for July and August 2010. The parents cross-appeal from the IHO's failure to consider certain claims. The appeal must be sustained. The cross-appeal must be dismissed. II. Overview—Administrative Procedures When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a school district representatives (Educ. Law. § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 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 (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; 34 CFR 300.151-300.152, 300.506, 300.511; Educ. Law § 4404[1]; 8 NYCRR 200.5[h]-[l]). 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 student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law. § 4404[1][a]; 8 NYCRR 200.5[j]). An 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 business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 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 (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.514[c]; 8 NYCRR 200.5[k][2]). III. Facts and Procedural History The student received special education and related services through the Early Intervention Program, as a preschool student with a disability, and as a student with autism while living out of State (Tr. pp. 640-45, 650-54; Dist. Ex. 9 at p. 1).1 In January 2009, the student and her mother moved to the district and in February 2009, 1 The student's eligibility for special education and related services as a student with autism is not in dispute in this proceeding (see Dist. Exs. 1; 4 at p. 1; 34 CFR 300.8 [c][1]; 8 NYCRR 200.1[zz][1]). 2 the parents enrolled the student at the Rebecca School (Tr. pp. 506, 656).2 Beginning in April 2009, the student received private home-based services using a DIR/Floortime method (Tr. pp. 747-48). The student continued to attend the Rebecca School during the 2009-10 school year (Tr. p. 506). On March 11, 2010, the CSE convened to conduct the student's annual review and to develop her IEP for the 2010-11 school year (Dist. Exs. 4; 8). For the 2010-11 school year, the CSE recommended placement of the student in a 6:1+1 special class in a specialized school with the services of a full-time 1:1 paraprofessional, as well as speech-language therapy, occupational therapy (OT), physical therapy (PT), and counseling services (Dist. Ex. 4 at p. 17). By letter dated June 14, 2010, the district summarized the recommendations made by the March 11, 2010 CSE and identified the particular school to which the district assigned the student (Dist. Ex. 13). The letter listed an address for the assigned school, as well as the name, address, and telephone number of the individual to contact if the parents wanted to discuss the recommendation or arrange another meeting (id.). On June 18, 2010, the student's mother visited the public school site identified by the district and the student's father wrote a letter to the CSE dated June 23, 2010 asserting that the particular public school site was not appropriate for the student "at least for the summer" and described reasons why the parents found the assigned school to be inappropriate for the student (Parent Ex. H at pp. 1, 3). The student's father ended the letter by indicating that they would continue to send the student to the Rebecca School for the summer and intended to seek tuition reimbursement (id. at p. 3). He also indicated that the parents were "looking forward to considering any appropriate schools" the district offered (id.). The student attended the Rebecca School through August 2010 and continued to receive private home-based services using a DIR/Floortime method, and instruction using the Fast ForWord program provided at a facility (Tr. pp. 745-48, 506; Parent Ex. R). In letters to the district dated August 30 and September 10, 2010, the parents indicated that in September 2010 they would "reassess" the appropriateness of the assigned school for the student (Parent Exs. F; G).3 2 The Rebecca School is a nonpublic school that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). 3 In the letter dated August 30, 2010 from the student's mother to the CSE, the parent wrote that "[w]e advised you in June that we did not find the placement offered for [the student] at [the assigned school] to be appropriate, at least for the [f]all, and that we would review the program again in September" (Parent Ex. G). The student's mother indicated that she had not received an answer to the previous letter and that she would contact the assigned school in September to reassess the appropriateness of the placement (id.). She added that "[i]n the interim, we will also be assessing the feasibility of sending [the student] to the Rebecca School or instituting a home program" (id.). The parent indicated that she would notify the district of the parents' decision "as soon as possible," and may seek funding for the Rebecca School or home program (id.). The student's mother indicated that the parents were still willing to consider any program or class offered by the CSE for summer or fall (id.).