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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 21
Hearing Requested By: Parent
Date of Hearing: August 27, 2010
December 1, 2010
January 6, 2011
March 7, 2011
April 11, 2011
June 3, 2011
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 27, 2010
Advocate — Student
School Psychologist, District 20 (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 1, 2010
School Psychologist, Chair Designee — Student
Advocate — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 6, 2011
Advocate — Student
Parents
DR., District Representative — DOE
CSE 7 (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2011
Advocate — Student
Parents
SEIT Teacher (Via Phone) — Student
DR., Chairperson Designee, CSE 7 — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 11, 2011
Advocate — Student
Parents
DR., Chairperson Designee, CSE 7 — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 3, 2011
Advocate — Student
Mother — Student
Teacher, (Via Telephone) — Student
Psy D., Chair Designee CSE 7 — DOE
By Complaint dated August 17, 2010, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to place 15 hours of SETTS at the enhanced rate of $120 on the Individualized Education Program (IEP) for 2010-2011. The matter was extended on joint application through July 5, 2011 because of the decision making process, availability of witnesses, the complexity of the issues, and related factors.
TESTIMONY/EVIDENCE
, a school psychologist, is employed at and . (23)
She reviewed ’s records and attempted to do some testing of him. (26) He was struggling, so she was only able to do select subtests. (26) He wasn’t cooperative at certain points. (26) She evaluated him and observed him. (48-49)
She appeared at the Committee on Education (CSE) review on March 23, 2010. (26) The SEIT provided a progress report. (27) The education itinerant teacher (SEIT) was at the review. (27)
He was classified as and impaired. (29) He was parentally placed at ; the parent was not interested in placing him into public school. (30) She recommended SETTS because he wasn’t able to identify all the letters and because he wouldn’t cooperative with her assessment. (31) She recommended 5 times weekly, in a pull-out arrangement. (32) (4x weekly), therapy, and therapy (2x weekly) are also recommended. (33) The SETTS recommendation was the maximum amount of services that she could provide for a child that is parentally placed. (33) The parent sought ten sessions of SETTS per week. (34) When a student needs that much support, they tend to recommend more restrictive environments. (34)
The team did want her to provide the extra 10 periods. (36, 44) She explained that, at the Committee on Preschool Education (CPSE) level, they usually did provide this level of service. (36) However, as a child becomes school age, they move away from the service and try to focus more on the classroom. (36) She thought that they should “give it a chance,” and that this was the least restrictive placement. (36-37) Anything more restrictive may not involve a general education placement. (37)
A parent member was unavailable, so they parent chose to proceed without her. (38-41)
, ’s SEIT, works for Integrated Treatment Services. (60) She provides him with ten hours a week of services. (61) She provides two hours twice a week and three hours twice a week. (61) She sees him inside the classroom. (61)
He has shown an increase in attending both in and out of group; and has increased with peers and adults; skills have increased with regard to story
, identification, identification, sequencing. (62) He is better able to explain himself, have “better clarity” within the classroom. (62) He continues to need support in following overall direction, managing impulsive , task completion, clear with full sentences, inferencing, conveying more complex messages. (62-63) She will prompt him to give more descriptive answers. (78)
She will follow the teacher’s lead and “jump in” to control impulsivity, to clarify , to elongate sentences, to allow him to follow more complex direction, to work with peers. (63) His articulation is very and he will provide responses. (63) She will pre-teach a more complex lesson, take him out one-on-one and break lessons down for him. (65)
There are 20 children in the class. (67) There are 2 assistants and one teacher. (67)
She works with him during circle time, choice time, art, story writing. (67-68)
ly and ly, he has lots of friends. (68-69) He learns from his peers, which is most important. (70)
The progress noted is anecdotal. (76)
The assistant teachers are not in the class the entire time. (82) is older than the other children in the classroom. (84)
He has a SEIT for the remainder 5 hours. (85)
When she is not in the classroom, may flee and not stay on task. (91) She has given him enough skills to be able to function when she is not there. (97, 101-102)
He generalizes certain skills in the classroom, including letter identification, number identification, calendar work, days of the week. (106-107)
The parent testified that the child has impulse issues, poor eye focusing, issues, sensory issues. (122) She indicated that he needed additional SEIT hours because he needs focusing, he needs cues, extra help to elongate sentences. (124)
His teacher has indicated that his focusing, listening, impulsivity, tendency to call out requires a SEIT. (126-127) He does not need a class because he requires interaction with general education children. (126-127)
He gets 15 hours of SEIT services. (128) The other 5 hours of SEIT services are provided by a man named Michael. (131)
The class is called an “upper nursery.” (135)
, a general education teacher, indicated that needed support in all aspects of academic and / functioning. (157) The SEITS were there to aid him, prompt him, refocus him, pre-teach him. (157) She would give them her lesson plan. (157)
He interacts with the peers in his class. (157) He has made some friends and has at times made decisions and inappropriate . (158) He made progress during the 2010-2011 school year, including recognizing letters, sounds, numbers, patterning, sequencing, reading comprehension. (158)
When they pre-taught him material, he was removed from the other children within the classroom. (161) This happens a few times per week. (162) When the SEITS are not there, she and the assistant teachers will refocus him. (167)
Evidence includes an Educational Progress Report by dated May 5, 2010, which indicated that should continue with 15 hours of SEIT services. (Exh. E) It indicates that he knows his , , parts. He can recognize many of the letter of the alphabet and some of the names of his peers. He can sequence 3 step scenes, his attention span has increased, his play skills have improved though he still needs teacher monitoring.
FINDINGS OF FACT AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The Individuals with Disabilities Education Act (IDEA) confers no individual entitlement to education or related services upon students who are enrolled by their parents in nonpublic schools. Section 3602-c of the New York Education Law requires the provision of education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made. N.Y. Educ. Law Sect. 3602-c(2)). Education for students with disabilities means education programs "designed to serve" students with disabilities. N.Y. Educ. Law Sect. 3602-c(1)(d). Subdivision 2 of section 3602-c of the Education Law requires boards of education to furnish appropriate education programs to students with disabilities privately placed by their parents in nonpublic schools. These services can be provided to children with disabilities, in appropriate circumstances, according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends. Bay Shore Union Free Sch. Dist. v. T., 2005 WL 3489246 (E.D.N.Y. Dec. 21, 2005); Application of the Bd. of Educ., Appeal No. 04-079.
On a case involving claims pursuant to allegations per Section 3602-c of the Education Law, the same standards apply as in a case containing IDEA allegations. The District must show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the law, and (b) the IESP developed by its CSE is reasonably calculated to enable the student to receive educational benefits. Though the parties characterized this as a claim pursuant to the IDEA and the challenged document is an IEP, the document should be characterized as an IESP. The meeting on March 23, 2010 was to provide services to a student attending private school.
The record indicates that the District has a policy of denying claims for 15 SEIT hours where children are receiving services pursuant to the CSE. However, according to the lone District witness, all the other members of the team recommended that the child receive 15 SEIT hours in his general education classroom. Further, the progress report in the record indicates that the child requires 15 hours of SEIT services to benefit from a general education classroom. Ms. Mancuso from the District appears to suggest that if a child requires 15 SEIT hours, the child necessarily needs a more restrictive placement. However, there is no such construct in the applicable law and regulations. On the contrary, there is sundry case law where children receive considerable individualized support because of the requirement to educate children in the least restrictive environment. See e.g., L.B. v. Nebo School Dist., 379 F.3d 966 (10th Cir. 2004)(35 to 40 hours of ABA per week where child in regular education classroom). It should be noted that the District conceded that the child could have received the 15 SEIT hours if he were under the aegis of the CPSE. There is no dispute on this record that the CSE failed to consider the parent’s proposed program even though parents should be deemed equal participants at the meeting. Application of a Child with a Disability, Appeal No. 04-081.
In my view, the District should have awarded the parent with 15 hours of SEIT services per week at the meeting. On this record, the parent has shown that the child requires 15 hours of SEIT to be able to function in the general education classroom. The two witnesses from the school were consistent in their assertions that the child’s attentional, cognitive, , and issues require such support. The progress report from the previous year included the same contention. indicated that has shown an increase in attending, increased cognitive skills, improved and , “better clarity” within the classroom with the general education class, related services, and 15 SEIT hours. She indicated that the 15 hours of SEIT services were necessary for such a result. Ms. , the general education teacher, indicated that the SEITS were necessary to aid him, prompt him, refocus him, pre-teach him. She indicated that made progress during the 2010-2011 school year, including recognizing letters, sounds, numbers, patterning, sequencing, reading comprehension. There is no testimony or evidence to the contrary. I find that the 15 hours of SEIT services were necessary to allow to benefit from the general education classroom, the least restrictive environment for this child. I will order that the 15 hours of SEIT at an enhanced rate be placed back on the IEP. Dated: July 5, 2011
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT DESCRIPTION
A Impartial Hearing Request dated 8/17/10, 4 pages B IEP dated 3/23/09, 21 pages C IEP dated 3/23/10, 12 pages D Therapy Report dated 5/15/10, 2 pages E Educational Progress Report dated 5/15/10, 3 pages F Therapy Report dated 8/15/10, 2 pages G and Report dated 6/25/10, 3 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 IEP dated 3/23/10, 15 pages 2 Psycho-educational Evaluation dated 3/2/10, 4 pages 3 Educational Progress Report dated 3/18/09, 3 pages 4 Educational Progress Report dated 2/15/10, 3 pages 5 Report dated 2/15/10, 3 pages 6 Therapy Report dated 3/1/10, 3 pages 7 Therapy Report dated 2/15/10, 2 pages 8 Declamation of Parent Member dated 3/23/10, 1 page 9 Final Notice of Recommendation dated 6/7/10, 1 page