Adam Dayan, Esq.
SRO Bates Decides That Parents Are Not Entitled To Reimbursement For 1:1 Paraprofessional
In Appeal No. 11-014, SRO Bates reversed an IHO's decision to reach the conclusion that the parents are not entitled to reimbursement for the cost of a 1:1 paraprofessional. The parents in this case filed a claim for reimbursement for tuition at the Ha'or Beacon School, a private school tailored to meet the needs of children with behavioral and emotional issues. In addition to seeking tuition, their claim also included a request for reimbursement for the cost of the child's 1:1 paraprofessional which the parents were paying for on their own. The IHO determined that the school district had offered FAPE and the parents were therefore not entitled to reimbursement for the tuition. However, the IHO awarded reimbursement for the paraprofessional from the time that the CSE recommended it (November 2009) until the end of the 2009-2010 school year.
SRO Bates, however, took the position that "absent a determination by the impartial hearing officer that there was a denial of FAPE, no basis exists upon which to predicate an award of additional services." If the CSE offered FAPE for that school year, the school district would not be liable for tuition reimbursement for the private school. However, regardless of whether FAPE was offered, it is the parents' prerogative to send their child to a private school and if the parents choose to do so, the school district is still required to provide the related services recommended on the IEP. Under New York law, a CSE must "assure that special education programs and services are made available to students with disabilities attention nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district." NY Educ. Law 3602-c. The SRO makes no mention of this provision and seems to have ignored it altogether. As of the November 2009 IEP meeting, the CSE believed that this child required a 1:1 paraprofessional. There is nothing in the record to suggest that the school district provided a para to the student at the private school and the parents therefore have a basis for reimbursement for the expense they incurred due to the district's failure to provide the service.