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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: February 1, 2011
March 11, 2011
March 21, 2011
May 2, 2011
May 10, 2011
June 21, 2011
July 25, 2011
Record Close Date: August 4, 2011
Hearing Officer: Theresa R. Joyner, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2011
Advocate — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2011
Educational Advocacy Services — Student
Parents
School Psychologist, CSE-7 — DOE
Chairperson Designee — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2011
Advocate — Student
Parents
District Representative — DOE
Clerical Associate (via telephone) — DOE
Teacher (via telephone) — DOE
— DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2011
Attorney — Student
Parents
Teacher (via telephone) — Student
School Psychologist, Chairperson Designee, CSE 7 — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2011
Advocate — Student
Parents
School Psychologist, Chairperson Designee CSE 7 — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2011
Advocate — Student
Parents
Teacher (via telephone) — Student
School Psychologist, Chairperson's Designee, CSE 7 — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2011
Advocate — Student
School Psychologist, Chairperson Designees, CSE-7 — DOE
DOE
— DOE
This matter came before me on February 1, March 11, 21, May 2,10, June 21 and July 25, 2011, the hearing was held pursuant to the Individuals with Disabilities Education Act (“IDEA”) §1415(f)(1). The parents‟ request was received on October 26, 2010. The parties jointly requested that the compliance date be extended after each hearing day. Appended to the record are lists of persons in attendance and documents admitted into evidence.
BACKGROUND
The student is an year old girl who is classified as and impaired. She attends a non-approved private school, School ( ). The Committee on Education (“CSE”) convened an Individualized Education Program (“IEP”) meeting on May 25, 2010; the CSE recommended a class in a community school, with a student to teacher ratio of . In addition, related services were offered, , 1x30:3; and therapy (“ ”) 1x30::3 and 3x30:1; and
Therapy (“OT”) 2x30:1. (Exh.1)
The parents requested this hearing (1) to challenge the alleged failure of the Department of Education (“DOE”) to provide their daughter with a “Free Appropriate Public Education” (“FAPE”) for the 2010-11 school year and (2) to seek an order that compels the DOE to fund/reimburse the tuition at , provide the IEP related services and transportation.
THE DEPARTMENT OF EDUCATION’S CASE
The Doe‟s witness, Ms. testified that she is a New York State licensed school psychologist and also licensed as a bilingual school psychologist. She is employed as a CSE Review Team Psychologist, which requires her to participate at IEP meetings, conduct observations and evaluations. In addition, she follows up with parents, service providers and does functional al assessments. The psychologist identified the participants at the student‟s May 25, 2010 IEP meeting and stated that the related services were continued based on the providers‟ recommendations. (Tr. 18-20 and 23-24) (Exh. 1)
She referenced the IEP for the student‟s reading and math scores which ranged from grade to mid grade. The scores were provided to the CSE from the student‟s teacher. Next, she reviewed a teacher‟s report dated May 24, 2010 which indicated her reading was at the end of a grade level and other areas were mid grade level. (Exh. 2)Another teacher‟s report dated June 14, 2009, showed the student performing on a beginning grade level in math and decoding with comprehension at a level. (Exh. 3) She stated both reports were from the same school, . Someone from the CSE team observed the student in her education class on November 30, 2009 and concluded the student was performing on a to grade level in reading and math. (Tr. 25-28 and 29- 31)(Exh. 4) The psychologist noted that the goals on the IEP were based solely on input from the student‟s then current teacher. (Tr. at 33)
On cross examination, the psychologist testified that none of the service providers participated in the IEP meeting. However, each provider submitted goals for the student to the CSE. The teacher goals were drafted that day based on the child‟s teacher‟s input. She acknowledged that the address on the IEP was different from the address on the final notice of recommendation. (Tr. at 36; 39-42 and at 43) (Exh.5) Ms. stated that the student was being promoted to the grade for the 2010-11 school year and was unable to explain why the teacher report dated May 24, 2010, indicated that the student was in the grade. During redirect, the psychologist stated that based on her discussions with child‟s teacher and others, she did not think a modification program should be set up for the student. Also, she stated that she is in no way involved with the issuance of the final notice. (Tr. at 45 and at 48-49) (Exh. 2)However, during recross examination, she acknowledged that the teacher had instituted a token economy to be used when the child is and is . (Tr. at 50)
testified that she has worked for the CSE for 23 years and that she is a clerical worker. She is responsible for opening referrals when children are referred to the CSE through sending out the Final Notice of Recommendation („FNR”). She explained that her duties include inputting all the data generated from an IEP meeting through placement. She explained in detail the data entry process and standard mailing procedures. It is her responsibility to contact the placement officer, fax the IEP with a request for a school and then follows up with an email. The placement officer gets back to her with a school; she inputs the information and generates the FNR. She identified the FNR sent out to the student it was dated July 20, 2010 and mailed that day. If she does not get a response within a few weeks, she contacts the parents. If the parent claims she did not receive it, another one is generated with the original date on it. Her name and telephone number are on the FNR as the contact person.(Tr. 60-63 and 65-67) (Exh. 5)
During cross examination, Ms. stated that she did not recall contacting the parent and did not know if a FNR had been sent out. When presented with a manila envelope sent from her office, addressed to the parent, postmarked September 22, 2010, she identified the handwriting as her own. She explained, why it was sent in September, either the parent called saying she did not receive it and requested it or she mailed it again because the parent had not responded. Those are the only two scenarios that are done in the regular course of business practice, for sending out a FNR. The address on the manila envelope is the same address that the July, 2010 FNR was mailed to.(Tr. 72-73 and 76-78)(Exh. L) stated that she is a education teacher at ; she teaches , and . She has taught that class for the past eight years. The school provides , and on the premises. Her current class consists of ten children, one class paraprofessional (para) and two individual paras; there are always four adults in the room. There were eleven children in her class in September, 2010. The student‟s IEP is similar to other students in her class. She reviews each child‟s IEP and teaches accordingly using different modalities for each child. Also, she directs the paras regarding manipulatives and/or any type of modifications .She opined that she could have met the student‟s goals and that the student would have fit in her class . She recalled the mother‟s visit to her class; she stayed for about ten minutes. The mother said the classroom was lovely and left. The teacher estimated that approximately 50% of the day is devoted to reading and math. (Tr. 81-83 and 84-86) On cross examination, the teacher stated that three of her students had individual paras, two were crisis paras and one was a health para. The children ranged from to years old. Their reading and math levels were from a to late grade. (Tr. 87-88; Exh. 1) The reading levels of the class now range from grade to grade and math ranges from grade to the beginning of grade. (Tr. at 96)
THE PARENTS’ CASE
, stated she is the student„s / grade English teacher. She has a New York State license to teach education, grades through . She explained that is a education program that operates within a general education school. This arrangement provides opportunities for mainstreaming. The school is located in Brooklyn; the student attends an all girls program. Ms. teaches the child from 1PM to 4PM, Monday through Thursday. Every other Friday, she teaches from 8:30AM to1PM. The student is mainstreamed to a grade class, for spelling, from 1PM to 1:30 PM, every day except Friday. A teacher assistant accompanies her into the mainstream class. (Tr. 106-108 and 109-111)
The teacher described the student‟s functioning at the beginning of the school year as being very and . She required assistance to get her on task. The teachers developed a check list for the student to follow that provides step by step instruction, for class preparation, including opening her homework folder, having her book ready and quietly taking her seat. Prior to creating the checklist, the student would take a long time to be prepared to receive academic instruction. The student requires a very structured lesson; she needs directions to be clearly printed in front of her and a token economy system. Also in addition to the tokens, there are other rewards given to her for staying focused. She learns well in a small group setting. The teacher noted that she uses a general education curriculum when teaching to improve the child‟s skills.(Tr. 112-114 and at 116) The child has made progress across the board academically and is performing on a grade to beginning grade in English and math. Her class has six students and a teacher‟s assistant. (Tr. at 121)
On cross examination, she stated that the education program at covers grades through , grade and school. The boys are taught in a separate building. She estimated that the student‟s decoding skills on an upper grade level and her reading comprehension is on a beginning grade level. In September, she functioned on the end of a grade level. She admitted that the school calendar as submitted was inaccurate. She agreed to provide an updated calendar. ( Tr. 126-128 and 132-133. (Exh. G) The teacher stated that she assessed the student for the time for this school year in May and did not evaluate her in the beginning of the school year. There are six children including the student in the class, all girls, ranging from - in September. She described the class as a multi-ability class covering through grade. She opined that the class was appropriate for the student, even though chronologically she should be in the grade. In addition, she noted the class caters to the child‟s needs. (Tr. 153-155 and 157-160)
The teacher stated that during recess several general education classes are in the yard with the student‟s class, however, her class has a specific area designated for them. The recess period provides additional opportunity for socialization with typically developing children; the children are free to mingle. Ms. testified that she has observed the student a few times in the mainstream grade Arts class. The student works in the class independently and will stay on task as long as the teacher assistant is there to redirect her. The student does not receive any related services during her time. (Tr.168-170 and 172-173)
The mother testified that she had no active memory of when she received the Final Notice of Recommendation („FNR”), except that it was very late. She described her classroom visit of the proposed class and concluded it was not appropriate for her daughter. She found the students to be cognitively and socially lower functioning than her daughter. She opined that due to the alleged limitations of the students that her daughter would not be able to advance in such an environment. In comparison, the class at offers more diversity academically and socially. There are peers from whom her daughter can learn from. Moreover, the teaching style and curriculum is fashioned to meet her daughter‟s specific needs. The student has made progress in math, reading, writing and her overall student has improved. The mother identified the 2009 1040 submitted and stated that the total income for her family of five, was $114,693. She acknowledged that no payments had been made to and that they are responsible for full payment, if they do not prevail at this hearing. (Tr. 177-179 and 180-181) (Exhs. C and K)
The mother stated that the school has contacted her about payment as recent as May and indicated if payment is not received then the matter would go to a collection agency. The school is aware that she is seeking payment through the hearing process. The family has not made any decision regarding whether her daughter will return to for the next school year. The child is transported to school via the DOE bus. She is open to her child attending a coed public school placement.(Tr. 183-185 and at 189) The mother stated that her middle child went to a private school last year that cost $90,000 and that they are still paying for it. (Tr. 191-193)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Two purposes of the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free appropriate public education (FAPE)4 that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a Free Appropriate Public Education (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]) program for the next school year" (34 C.F.R. § 300.324[b][1]; 8 NYCRR 200.4[f]; see 20 U.S.C. § 1414[d][4][A][i]; Educ. Law § 4402[1][b][2]). A district must have an IEP in effect at the beginning of each school year for each student in its jurisdiction with a disability (34 C.F.R. § 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6 [stating "[a]n education department‟s delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement … for the beginning of the school year in September'"]; Application of the Bd. of Educ., Appeal No. 10-006; Application of a Student with a Disability, Appeal No. 09-111; Application of a Student with a Disability, Appeal No. 08-157; Application of a Student with a Disability, Appeal No. 08-088). ]). As a matter of State law, a school year runs from July 1 through June 30 (Educ. Law § 2[15]). Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).
A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008].
A board of education may be required to reimburse parents for their 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 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). This relief was extended to prospective payment for services. Connors v. Mills, 34
F. Supp. 2d 795(NDNY)
I have reviewed all the testimonial and documentary evidence .I find that in this matter, the Department of Education has satisfied its burden of showing that its recommended placement is appropriate. The Department of Education has offered the child a “free appropriate public education” and has satisfied the prong of the Burlington/Carter test.
The evidence shows that the student was performing somewhere between a to grade level in reading and math in the nd/ rd grade class. The students in the proposed class, , and , were performing in the to grade level. (Tr. at 88 and 130) (Exhs. 2, 4 and J) Both the recommended and private school had multiple grades in each class; both teachers indicated that they fashion the academic program to each child‟s needs, using different modalities to accommodate each child‟s level of performance. (Tr. at 84; 130 -131 and 178-179) Both schools offered the student opportunity for mainstreaming since they are each housed within a general education school. However, apparently only the public school placement offered the child the opportunity to be taught in co-educational classes and to receive her related services of and therapy as well as within the school. The parents have argued that the Final Notice of Recommendation was not received until September 22, 2010 or later, however, the record is not clear as to whether this was the or notice mailed. The mother‟s own testimony wavered between testifying she received the notice in July to “I have no active memory of when it was received.” (Tr. at 176; Exh. C) However, it is undisputed that the notice is dated July, 20, 2010. (Tr. at 64 and 200. Next, I find that the parents‟ other assertions are without merit.
Having found the Department of Education‟s recommended placement appropriate to meet the child‟s education and related services needs, I need not consider the other prongs of the Burlington/Carter test.
Accordingly, it is ordered that the Department of Education shall not be liable for the student‟s 2010-11 tuition at .
Dated: August 15, 2011
________________________________
THERESA R. JOYNER, ESQ.
Impartial Hearing Officer
TJ:dl
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 ON MARCH 11, 2011
PARENT
None
DEPARTMENT OF EDUCATION
1 IEP, dated 05/25/2010, 17 pages 2 School Progress Report dated 05/24/2010, 1 page 3 School Progress Report dated 06/14/2009, 1 page 4 Observation dated 11/30/2009, 2 pages 5 Final Notice of Recommendation dated 07/20/2010, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 21, 2011
PARENT
A Hearing Request, 10/26/10, 4 pages B School Description, 1 page C Placement Letter and Fax Confirmation, 7/20/10, 2 pages D 10-Day Notice Letter, 8/18/10, 1 page E Tuition Contract, 1 page F School Affidavit, 1/19/11, 1 page G Daily Schedule, 1 page H Attendance Record, 1 page I Academic Progress Report, 6 pages J IEP, 5/25/10, 14 pages K Copy of 2009 (1040) Tax Return, 2 pages L Copy of Envelope, 9/22/10, 1 page
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 21, 2011
PARENT
G Replaced with Corrected Class Schedule, 1 page
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 25, 2011
PARENT
M Canceled checks and cover letter, 6/27/11, 5 pages N Copy of 2010 (1040) Tax Return, 2 pages
DEPARTMENT OF EDUCATION
None