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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 7, 2011
March 30, 2011
April 8, 2011
May 10, 2011
May 20, 2011
July 12, 2011
July 19, 2011
July 21, 2011
Record Close Date: October 12, 2011
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLED OF PERSONS WHO APPEARED ON MARCH 17, 2011
For the Student:
, Attorney , Attorney , Parent
, Parent
For the Department of Education: , District Representative
, Classroom Teacher (via telephone)
NAMES AND TITLED OF PERSONS WHO APPEARED ON MARCH 30, 2011
For the Student: , Attorney , Parent , Parent For the Department of Education: , District Representative
Coordinator (via telephone)
NAMES AND TITLED OF PERSONS WHO APPEARED ON APRIL 8, 2011
For the Student: , Attorney , Attorney , Attorney , Parent , Parent
For the Department of Education: , District Representative , Pathologist, (via telephone) , , (via telephone)
NAMES AND TITLED OF PERSONS WHO APPEARED ON MAY 10, 2011
For the Student: , Attorney , Legal Intern , Parent , Parent , , (via telephone)
For the Department of Education: , District Representative , , (via telephone)
NAMES AND TITLED OF PERSONS WHO APPEARED ON MAY 20, 2011
For the Student: , Attorney , Parent , Parent
For the Department of Education: , District Representative , CPSE Administrator (via telephone)
NAMES AND TITLED OF PERSONS WHO APPEARED ON JULY 12, 2011
For the Student: , Attorney , Parent , Parent , Teacher, (via telephone)
For the Department of Education: , District Representati
NAMES AND TITLED OF PERSONS WHO APPEARED ON JULY 19, 2011
For the Student:
, Attorney
, Parent
, Parent
, Therapist, (via telephone)
, PhD, Educational Coordinator, (via telephone)
, (via telephone)
For the Department of Education:
, District Representative
NAMES AND TITLED OF PERSONS WHO APPEARED ON JULY 21, 2011
For the Student:
, Attorney
, Parent
, Parent , , (via telephone)
, PhD, Educational Coordinator, (via telephone) , (via telephone)
For the Department of Education:
, District Representative
I. PROCEDURAL HISTORY
This hearing was requested on January 5, 2011 by counsel for the student and the parents pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. ' 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to pay costs associated with the student’s unilateral placement at the ”), a private school, during the 2010/11 school year. The parents also seek reimbursement and prospective funding for a variety of therapies and related services for the student (Ex. IHO-I at 11).[1] In a January 13, 2011 due process response, the DOE denied each and every allegation contained in the parent’s impartial hearing request (Ex. P-A at 1). Following a February 9, 2011 conference, hearings in this matter were held on March 17, 2011, March 30, 2011, April 8, 2011, May 10, 2011, May 20, 2011, July 12, 2011, July 19, 2011, and July 21, 2011 (Ex. IHO-III). Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR ' 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of the impartial hearing, the student was years old and attending (Ex. IHO-I at 1, 11). is a nonpublic school which has not been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education instruction and services to students with disabilities. See 8 NYCRR '' 200.1(d), 200.7. The student's eligibility for special education and related services is not in dispute in this hearing (Exs. IHO-I at 2-11, P-A at 1). See N.Y. Educ. Law ' 4410(1)(I); 8 NYCRR ' 200.1(mm).
The student, who is the product of a and is , resides with his parents. As of a February 25, 2009 social history, the student did not . The student’s mother works in .
The student’s father . English is the . There is reportedly no family history of or (Exs. SD-30 at 1, SD-31 at 2).
The student’s level of and reportedly diminished after he was given immunizations. The student’s parents sought (“ ”) services in July 2008 due to concerns. During the 2008/09 school year, the student attended a (2) , five (5) days per week, where he received ( ”) instruction weekly.[2] At that time, the student also received , along with , for , and ( ) (Exs. SD-27, SD-28 at 1, SD-29 at 1, SD-30 at 1, SD-31 at 1-2, SD-32 at 1, 6).
After obtaining the informed written consent of the student’s mother, the student was referred to the Committee on Preschool Education (“CPSE”) on January 15, 2009 for evaluation (Exs. SD-37, SD-38, SD-39). Thereafter, the student’s mother provided her informed written consent for an initial evaluation of the student (Ex. SD-33).
On February 25, 2009, when the student was ) years old, the student’s functioning was measured using the - Third Edition (“ ”), a that assesses the and of age. On the (65), which was classified as (Exs. SD-20 at 1, 3, SD-32 at 2, 6).
During the same assessment, the student was also administered the : Survey Interview Form (“ ”), which is a measure of in : , for ( ). On the II, the composite score ), which was in the . While the , and skills measured in , his (Exs. SD-20 at 1, 3, SD-32 at 2, 6).
During a February 26, 2009 educational evaluation employing the Scale and the Profile - Revised, when the student was , he demonstrated levels in the areas of (Ex.
SD-28 at 1, 4).[3]
On a separate February 26, 2009 evaluation, the abilities were assessed using the (“ -4”) and the ”). The used to identify children who have either or disorder. The is an assessment tool that contributes to the early identification of problems in the of children from (3) years (Exs. SD-20 at 2, SD-30 at 1-2, SD-36).
The student presented with significant delays across all and on these assessments. The student achieved a total ) on the -4 which corresponded to the . The student was unable to (Exs. SD-20 at 2, SD-30 at 3-4).
The student also did not have an at this time but (e.g., by ). On the ( ), ) standard deviations below the mean. The student’s were also judged to be as he did not produce a variety of (Exs. SD-20 at 2, SD-30 at 3-4).
The student was also evaluated for on February 26, 2009. The questionnaire was used to gather information regarding the student’s ability to process information. According to the , the student demonstrated typical performance overall in processing abilities. The student’s performance on the - Second Edition, however, indicated that the student’s skills were in , in ) (Exs. SD-20 at 2, SD-29 at 4).
On March 23, 2009, the parents were invited to attend and participate in a CPSE meeting on April 8, 2009 (Ex. SD-26). At the April 8th meeting, the CPSE determined that the student was student with a disability based on: and skills, difficulty following and across all parameters in . The CPSE recommended for the 2009/10 school year, that the student receive , in a . The location of the recommended class was identified as . Recommended related services included: special education transportation; , per session; and per week for (Exs. SD-21, SD-22, SD-23, SD-
24 at 1-5, 14, 16).
On June 28, 2010, when the student was , a private evaluation was conducted by the (the “ ”). From the evaluation, which included an administration of the ”), it was determined that the student’s Atwo major areas of concern are his o ask for .
Based on these needs, the evaluator recommended: ( ) (12) month programming, with ;( ) ( ) hours weekly of therapy; ( ) and ( ) hours monthly of parent training on ; and ( ) between the student’s parents and teachers (Ex. SD-19 at 1, 5-6).
During the 2009/10 school year, the student attended school at in , New York. There were ) students in his classroom, ) teacher, and two ) teacher’s aides. During this time, the student received , three (3) , and , ( ) (R. 65, 299, 304, 842; Exs. SD-11 at 1, SD-13 at 1, SD-15 at 1, SD-17 at 1, SD-18 at 2).
In an April 7, 2010 educational progress report, the student’s special class teacher, Ms. , stated that the student had made “ from and for . The student, however, also engaged in “ , e.g., ” and “ .” In Ms. ’s opinion, the student “ , structured environment with opportunities for ” (Ex. SD-15 at 3).
In April 12, 2010 progress report, it was noted that the student’s primary means of in his proximity. At that time, the student was using a (“ ”) to make requests. The student’s therapist noted inconsistency in the student’s ability to use and to follow
(1) step directions without multiple prompts. The therapist recommended that therapy be continued at the then-current levels (R. 315, 317-318; Ex. SD-13 at 2).
On May 6, 2010, when the student was years old, he was referred by his parents to the for a evaluation in order to determine his current levels of functioning. On an administration of Test for , the student displayed global delays in (age equivalent of of age), skills (age months of age), , skills and skills. The recommended that the therapy be increased to ) times per week, ) minutes per session. The evaluator also recommended that the (“ ”) method be utilized with the student to provide cues for appropriate production of sounds (Ex. SD-18).
On May 12, 2010, the student returned to the for an evaluation. During this evaluation, the student was administered the Scales - Second Edition (“ -2”) and the Profile.[5] On these assessments, the student demonstrated , and (e.g., ). The student also which interfered with . The evaluator recommended that the ’s ) minutes per session. The evaluator also recommended and specific instructional goals (Ex. SD-17).
On May 20, 2010, the CPSE reconvened to review the student’s program. During the meeting, the CPSE noted that the student is “ ” and “ and in his .” The CPSE also noted that the student “ ,” such as , and . The CPSE described the student’s skills as and noted that the student had “ to .” The student’s as requiring “ ” (Exs. SD-11 at 1, SD-12 at 4-7).
For the 2010/11 school year, the CPSE recommended that the student , five
(5) (5) , in a . The location of the recommended class was identified as . . The CPSE also recommended that the student receive (“ ”) . Recommended related services included: ; , ) minutes per session; and , ( (Exs. SD-9, SD-10, SD-12 at 1, 12, 14).
On June 14, 2011 and June 21, 2011, the student participated in a comprehensive evaluation conducted by the . Given the challenges, it was difficulty to assess his with standardized measures. His responses to tasks on were significant delays in the domains. During the testing, the in the , , , and . On a readministration of the , the , and all measured below his . The student was diagnosed with , , (Ex. SD-11 at 5-6).
Based on the data obtained, the evaluation team recommended that the student receive: (1) a ; (2) (40) therapy, divided between ; (3) individual therapy, ) , therapy, and ; (4) therapy, to address the student’s ;@ and (5) therapy, per session. Weekly parent training and monthly interdisciplinary meetings were also recommended (Ex. SD-11 at 6-7).
On August 2, 2010, the student’s parents wrote to the CPSE to object to the level of services it had recommended for the student and provided the CPSE with written notice of their intent to make a unilateral placement of the student at during the 2010/11 school year at public expense (Ex. SD-6). On that same day, the parent’s signed an enrollment contract for the student to attend the for the 2010/11 school year (Ex. PCC).
On August 20, 2010, the student’s father wrote to the CPSE to request transportation for the student to and from Ex. SD-5). On August 25, 2010, Dr. LLP recommended that the student’s travel time should not exceed more than each way given the student’s diagnosis of and presentation (Ex. P-H).
On September 3, 2010, the student’s parents requested that the CPSE reconvene to review the results of the evaluation conducted by the . The parents also reiterated their intent to make a placement of the student at for the 2010/11 school year at public expense (Ex. SD-4). In a September 20, 2010 letter to the CPSE, the parents stated that they had been directed by Ms. , the CPSE chairperson, to file a formal request for a hearing in lieu of another CPSE meeting. The parents again reiterated their intent to make a unilateral placement of the student at for the 2010/11 school year at public expense (Ex. P-B).
In a February 15, 2011 report, Ms. , the student’s SEIT, stated that she provided the student with therapy weekly. At that time, the student required continuous and . He required to during activities. He had and , but had shown that information (Ex. P-E).
III. POSITIONS OF THE PARTIES
A. The Parents
The DOE failed to offer the student a free appropriate public education (“FAPE”) for the 2010/11 school year. The CPSE which developed the student’s individualized education program (“IEP”) for the 2010/11 school year was not duly constituted. The CPSE failed to develop an IEP which was tailored to the student’s individual and unique needs. The CPSE failed to have sufficient evaluations of the student’s then-current levels of educational functioning and failed to meaningfully consider private evaluations secured by the parents. The CPSE failed to develop appropriate annual goals and shortterm objectives. The CPSE failed to provide the student with appropriate and consistent support. The CPSE also failed to include adequate special education transportation, and training, , a ”) or a ”) in its proposed IEP for the student. The group of students with whom the CPSE proposed to educate the student was , levels. The DOE also failed to timely implement the student’s pendency services.
The parents’ unilateral placement of the student at was and reasonably calculated to provide the student with meaningful educational benefits. There are no equitable grounds on which to reduce or preclude a reimbursement award to the parents
(R. 43-49, Ex. IHO-I).
B. The DOE
The DOE denies each and every allegation contained in the parents’ due process complaint notice. The student was offered a FAPE in the least restrictive environment (“ ”) in a timely fashion. The recommended program and placement were reasonably calculated to meet the student’s needs. was inappropriate for the student because it was and failed to provide the student with . The equities also mitigate against a reimbursement award because the parents never had a true intent to place the student in a public school during the 2010/11 school year (R. 37-43; Ex. P-A).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, 20 U.S.C. ' 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special 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.[6] See 20 U.S.C. '
1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. See 20 U.S.C. ' 1415(f)(3)(E)(ii); 34 C.F.R. ' 300.513(a)(2); 8 NYCRR ' 200.5(j)(4)(ii).
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 FAPE. See 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.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided
(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 school, 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(9); 34 C.F.R. ' 300.17. 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the LRE. See 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); 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. Also, a FAPE must be available to an eligible student Awho needs special 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).
An appropriate educational program being 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), 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 special education services, 34 C.F.R. ' 300.320(a)(4); 8 NYCRR ' 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law ' 4404(1)(c).
B. Pendency
In their January 5, 2011, the parents invoked the student’s “pendency entitlements” (Ex. IHO-1 at 2). The relevant provisions of Federal and State law require that a student remain in his or her then current educational placement, unless the student’s parents/guardians and the DOE otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. See 20 U.S.C. ' 1415(j); 34 C.F.R. ' 300.518(a); N.Y. Educ. Law ' 4404(4); 8 NYCRR ' 200.5(m). Although not defined by statute, the phrase “then current educational placement” has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced. See, e.g., Application of the New York City Sch. Dist., Appeal No. 10-112 at 4 (SRO Dec. 13, 2010). The U.S. Department of Education has opined that a student’s current placement would “generally be taken to mean current special education and related services provided in accordance with a child’s most recent [IEP].” Letter to Baugh, 211 IDELR 481 (OSEP 1987).
Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability. See Honig v. Doe, 484 U.S. 305, 323 (1987). The pendency provision does not mean that a student must remain in a particular site or location. See Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 (2d Cir. 1980).
I find that the last agreed upon placement between the DOE and the student’s parents is reflected in an April 8, 2009 IEP (Ex. IHO-IV at 4). That IEP called for the student to receive, inter alia, special education transportation; individual , ) times per , per session (Exs. IHO-IV at 4, SD-21, SD-22, SD-23, SD-24 at 1-5, 14, 16). As the April 8th IEP was the student’s last agreed upon placement between the DOE and the parents, I find that program and services contained therein represent the student’s pendency placement (Exs. IHO-IV at 4, SD-24). Therefore, the student has been, and continues to be, entitled to receive the following services at public expense from the date of the initiation of this claim, i.e., January 5, 2011, through the conclusion of these proceedings, and any subsequent appeals: (1) special education transportation; (2 , ; and (3) , three ( per session (Ex. IHO-IV at 4, SD-24 at 1, 16).
While it appears that the DOE provided some pendency services to the student during the 2010/11 school year, pursuant to a December 8, 2010 Interim Order on Pendency rendered by Impartial Hearing Officer , it is unclear from the record which services were provided to the student or for how long (R. 1037, 1066-1067, 1643-1656).[7]
To the extent that the parents funded special transportation or other related services which the DOE was obligated to provide under the pendency provisions of federal and state law, see 20 U.S.C. ' 1415(j); 34 C.F.R. ' 300.518(a); N.Y. Educ. Law ' 4404(4); 8 NYCRR ' 200.5(m), the parents shall be reimbursed for those costs by the DOE within thirty (30) days of the DOE’s receipt of proof-of-payment for such transportation and/or related services.
Where the student failed to receive related services to which he was entitled under the pendency provisions of federal and state law, see 20 U.S.C. ' 1415(j); 34 C.F.R. ' 300.518(a); N.Y. Educ. Law ' 4404(4); 8 NYCRR ' 200.5(m), the DOE shall provide the student with additional services to compensate for those to which he was unlawfully denied, see Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (approving awards of compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services).
C. Transportation
I find that the student was improperly denied transportation by the DOE to (Ex. IHO-I at 5). Contrary to the statements of school personnel at the hearing, the Education Law requires that school districts provide transportation to non-public school students within the same milage limits established for resident students attending public schools
(R. 888-889, 1010, 1015, 1053-1054, 1066-1067). See N.Y. Educ. Law ' 3635. Additionally, the Education Law requires that a school district provide transportation to a student with a disability where a parent makes a unilateral placement to a school which offers a program similar to the program recommended in the child’s IEP. See N.Y. Educ. Law ' 4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994). Consistent with these requirements, the DOE was obligated to provide the student with transportation to during the 2010/11 school year.8
D. Tuition Reimbursement
A board of education may be required to reimburse parents for private educational services obtained for a student, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parents were appropriate and equitable considerations support the parents’ claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dept of Educ., 769 F.
8st
Although the parents’ August 20, 2010 transportation request was beyond the April 1 deadline to request such services, see N.Y. Educ. Law ' 3635(2), there was no testimony offered that this was the reason the DOE did not provide the student with special education transportation during the 2010/11 school year. Even if such a defense had been asserted, the DOE would still have been required to provide transportation were a reasonable excuse offered by the parents for the late filing. See id.; see also Appeal of Davila (Uniondale Union Free Sch. Dist.), 41 Educ. Dept. Rep. 419, 420 (Comm’r of Educ. May 31, 2002). Supp. 2d 403, 427 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (N.D.N.Y. 1998).
For the reasons set forth below, I find that the DOE’s recommended program for the student was inappropriate, that was an appropriate placement for the student and that there are no equitable grounds for which a reimbursement award should be reduced or precluded.
1. Proposed Public Program
a. May 20, 2010 CPSE Composition
The parents argue that the DOE failed to request the participation of the student's at the May 20th CPSE meeting (R. 177-178, 405-406, 852, 976-977; Ex. IHO-I at 5; Pet. Br. at 17). New York State law provides that a CPSE shall include "persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual." See 8 NYCRR ' 200.3(a)(2)(vii). Although the request by a school district for the participation of a student's related service providers is to be encouraged, it is discretionary under State law and I find that the district did not violate any procedural requirements by not inviting the student's to participate. See Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11002 at 14-15 (SRO March 24, 2011).
b. Predetermination of Recommendation
While the parents claim that the CPSE engaged in impermissible predetermination in the IEP development process, I find that the fact that school members of the CPSE met before the May 20, 2010 to discuss some components of the proposed IEP is an insufficient basis to conclude that they impermissibly predetermined their program recommendations for the student for the 2010/11 school year (R. 405-406, 414, 857, 872, 957, 996-997; Ex. IHO-I at 3). See 34 C.F.R. ' 300.501(b)(3); 8 NYCRR ' 200.5(d)(2); T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). Likewise, I do not find that the omission of comment at the May 20th meeting of the educational methodologies used in the proposed program, see Application of a Child with a Disability (Monroe-Woodbury Cent. Sch. Dist.), Appeal No. 02-022 (SRO Jan. 16, 2003) (CPSE not required to specify a teaching methodology in the child’s IEP), or the absence of a recitation of parental rights under the Jose P. v. Ambach Consent Order evidences impermissible predetermination of the student’s proposed program or placement (R. 931, 989-990; Exs. IHO-I at 4-5; SD-12, P-K).
c. Adequacy of Evaluations
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student’s parent or teacher requests a reevaluation, see 34 C.F.R. ' 300.303(a)(2); 8 NYCRR '' 200.4(b)(4), 200.16(d)(5), however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and at least once every three (3) years unless the district and the parent agree in writing that such a reevaluation is unnecessary, see 8 NYCRR 200.4(b)(4), 200.16(d)(5); see also 34 C.F.R. '' 300.303(b)(1)-(2). Additional evaluations or assessments may be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR ' 200.4(b)(3).
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student’s IEP. See 20 U.S.C. ' 1414(b)(2)(A); 34 C.F.R. ' 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments and may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. ' 1414(b)(2)(C); 34 C.F.R. ' 300.304(b)(3); 8 NYCRR '' 200.4(b)(6)(x), 200.16(d)(5).
A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. ' 1414(b)(3)(B); 34 C.F.R. ' 300.304(c)(4); 8 NYCRR '' 200.4(b)(6)(vii), 200.16(d)(5). An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. ' 300.304(c)(6); 8 NYCRR '' 200.4(b)(6)(ix), 200.16(d)(5). Among the other elements of an IEP is a statement of a student’s academic achievement and functional performance and how the student’s disability affects his or her progress in relation to the general education curriculum. See 20 U.S.C. ' 1414(d)(1)(A)(i)(I); 34 C.F.R. ' 300.320(a)(1); 8 NYCRR '' 200.1(ww)(3)(i), 200.4(d)(2)(i).
In developing the recommendations for a student’s IEP, the CSE or CPSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. See 34 C.F.R. ' 300.324(a); 8 NYCRR '' 200.4(d)(2), 200.16(d)(5).
I find that the CPSE improperly failed to review the evaluative information available at the time of the May 20, 2010 meeting when developing the student’s IEP for the 2010/11 school year (Exs. SD-12, SD-17, SD-18, SD-19, SD-20, SD-27, SD-28, SD29, SD-30, SD-31, SD-32, SD-36). While Ms. coordinator) claimed that the May 20th IEP was based on past assessments, I do not find that claim credible given that she could not recall what evaluations were reviewed by the CPSE before, or at, the May 20th meeting and given that the IEP section where evaluative data should have been reported is blank (R. 175, 339, 407-408, 994; Ex. SD-12 at 3-4).
Additionally, while Ms. testified that the student’s instruction during the 2009/10 school year was guided largely by IEP goals and data taken using the Skills - Revised (“ABLLS-R”), I find that the CPSE improperly failed to review the student’s progress on IEP goals or data at the May 20th meeting (R. 310, 335-336; Exs. SD-12, SD-24 at 7-13, SD-75, SD-76). Indeed, it appears from the testimony of Ms. that the only evaluative information considered by the CPSE at the May 20th meeting was an April 7, 2010 educational progress report authored by Ms. an April 12, 2010 progress report from the student’s therapist and an April 16, 2010 progress report from the student’s therapist (R. 74-75, 168, 320-322, 324, 845-849, 945946, 982-983; Exs. SD-13, SD-15, SD-74). Given that this student’s instruction during the 2009/10 school year was largely data driven, I find that it was improper for the CPSE to exclusively rely on anecdotal progress reports when making program recommendations for the student for the 2010/11 school year (R. 310, 335-336, 946, 994995; Exs. SD-12, SD-24, SD-75, SD-76).
Lastly, I find that the CPSE’s failure to reconvene after the May 20th meeting, to review updated , , , and evaluations secured by the parents shortly before the 2010/11 school year, was improper (R. 895-896, 1015-1017, 1027, 1055-1059; Exs. SD-4, SD-6, SD-11, SD-17, SD-18, SD-19, P-B). See Application of the Bd. of Educ., Appeal No. 11022 at 19 (SRO April 18, 2011) (a CSE is required to consider reports from privately retained experts).
d. Sufficiency of Goals and Objectives
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs the result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. ' 1414(d)(1)(A)(i)(II); 34 C.F.R. ' 300.320(a)(2)(i); 8 NYCRR '' 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR ' 200.4(d)(2)(iii)(b); see also 20 U.S.C. ' 1414(d)(1)(A)(i)(III); 34 C.F.R. ' 300.320(a)(3).
While the listed goals set forth in the May 20, 2010 IEP contain a specific evaluation criterion, an evaluation procedure and an evaluation schedule, see 8 NYCRR 200.4(d)(2)(iii)(b), I find that the absence of annual goals to address the student’s recognized needs for and denied the student a FAPE (R. 75-76, 78-79, 193-196, 409, 872-875; Ex. SD-12 at 8-11).
As the student was repeatedly described by school staff as “ ,” I find that it was improper for the CPSE to have the student rely exclusively on a for and not include any annual goals for (R. 80-82, 180, 383, 850-851, 974-975; Exs. SD-12 at 8-11, SD-15 at 2).
Similarly, I find that it was improper for the CPSE to delete the goal from the May 20th IEP given the student’s recognized need, and failure to progress in, this area during the 2009/10 school year (R. 75-76, 146-150, 152-154, 951; Exs SD-12 at 8-11, SD-15 at 2, SD-24 at 9). Although Ms. claimed that goals were unnecessary because that topic was Aalready incorporated@ in the special class curriculum, Ms. was unsure if would have been initiated with the student during the 2010/11 school year (R. 75-76, 947-950, 953, 1059-1062). In any event, Ms. s claim is inconsistent with the CPSE’s obligation to develop measurable annual goals to meet each of the student’s educational needs that result from the student’s disability. See 20 U.S.C. ' 1414(d)(1)(A)(i)(II); 34 C.F.R. ' 300.320(a)(2)(i); 8 NYCRR '' 200.4(d)(2)(iii), 200.16(3)(3)
It was also improper for the CPSE to goals from the May 20th IEP given the student’s significant needs, e.g., , and delays (R. 853-855, 966; Exs. SD-12 at 8-11, SD-15 at 3). Although a program to issues was present in the special class during the 2009/10 school year, it was not available to the student because another child was using it
(R. 68-69, 196-197). The mere presence of a was not an adequate substitute for an individualized analysis by the CPSE of how school staff should have addressed the student’s unique sensory needs during the 2010/11 school year (R. 369-372).
e. Program/Placement
It is well-settled that a school district must periodically review, at least annually, and revise, as appropriate, a student’s IEP. See 20 U.S.C. ' 1414(d)(4)(A); 34 C.F.R. ' 300.324(b)(1)(i); N.Y. Educ. Law ' 4402(2); 8 NYCRR ' 200.4(f). The CPSE is required to develop an IEP that accurately reflects the student’s special education needs. See 34 C.F.R. ' 300.306(c)(2); 8 NYCRR '' 200.4(d)(2), 200.13(e).
The crux of the DOE’s argument is that the appropriateness of the special class at for the 2010/11 school year is established by evidence of the student’s past progress in a similar program during the 2009/10 school year. While it remains unsettled within the Second Circuit whether or not retrospective evidence may be considered when evaluating the appropriateness of a challenged IEP, see D.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 599 (2d Cir. 2005); see also T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 251 n.1, even upon consideration of such evidence I find that the CPSE’s proposed program for the student was not reasonably calculated to confer meaningful educational benefit to the student.
I find that the student’s unique educational needs required more daily individualized instruction offered by the special class (R. 93, 114-116). Although the student’s instruction during the 2009/10 school year was guided largely by IEP goals, no evidence was offered at the hearing of periodic reports on the student’s progress toward the annual goals contained in the April 8, 2009 IEP (R. 310, 335-336; Exs. SD-24 at 713, SD-75, SD-76). See 8 NYCRR '' 200.4(d)(2)(iii)(c), 200.16(e)(3). While Ms. , Ms. and Ms. all stated that the student was “making progress” in the special class program during the 2009/10 school year, I do not find those claims credible given that the student failed to master most of the skills categories from the prior school year (R. 5961, 63, 191, 306, 313-314, 331, 339, 423, 425, 522, 931; Exs. SD-75, SD-76).
Additionally, as there is no record in the May 20, 2010 IEP of any strategies to address the student’s , e.g., , which would provide equivalent benefits of an or a , I find that the absence of an or from the IEP renders it legally inadequate (R. 62-63, 66, 77, 163-167, 173, 209, 375-379, 627-628, 866-867, 909, 967-970, 984, 959-970, 10621063; Exs. IHO-I at 4, SD-12 at 3-6).[9] See R.K. v. New York City Dept of Educ., No. 09CV-4478, 2011 WL 1131492 (E.D.N.Y. 2011); cf. A.C. v. Board of Educ., 553 F.3d at 172-173.
While Ms. described using redirection and prompting to address the student’s inattention in class during the 2009/10 school year, there was no provision in the May 20th IEP describing when or how that technique should be used with the student during the 2010/11 school year (R. 83-84, 161-162, 170-171, 210, 958; Ex. SD-12). See id.
Although Ms. acknowledged that the need of a was not discussed at the May 20th meeting, she stated that no was developed because the student’s Acould be managed@ by the adults in the classroom. There is no statement in the IEP, however, explaining how the adults in his previous classroom accomplished this task nor are there any goals included to address aggressive or escape behaviors (R. 95, 866-867, 959-962, 967-970, 978-979, 981, 1063).
While Ms. recalled an Ainformal@ behavior plan called a Areinforcement system@ being in place during the 2009/10 school year, she stated that the absence of an or was the result of a DOE practice, which authorizes only for students for whom and/or a crisis paraprofessional have been recommended (R. 307, 378-380, 995, 998).
Lastly, as Ms. and Ms. provided inconsistent testimony on the availability of mandated parent and training at . , I find the CPSE erred by not including that recommended service on the student’s May 20, 2010 IEP (R. 352-355, 964-966; Exs. IHO-I at 4, SD-12).[10] See 8 NYCRR ' 200.13(d).
f. Proposed Grouping
In addition to challenging the IEP developed by the CPSE, the parents contend that the student would not be suitably grouped for instructional purposes in the proposed special class at (R. 159, 299-300, 910; Ex. IHO-I at 6).
Neither the IDEA nor State regulations require a school district to establish the manner in which a student will be grouped on his or her IEP, as it would neither be practical nor appropriate. See Application of the New York City Sch. Dist., Appeal No. 11-025 at 17 (SRO April 7, 2011).11 I note that the documentary evidence demonstrates that the parents decided to unilaterally placed the student at prior to the time that the DOE was required to implement the IEP in September 2010 (Ex. P-CC, P-DD). In this case, issues regarding the age range and functional levels of the students in the proposed class are speculative because, by September 2010, it became clear that the parents intended to enroll the student at (Exs. IHO-I at 6, P-CC, P-DD).
Even assuming, arguendo, that the proposed grouping of the student in the special class at was inappropriate, it is unknown whether the CPSE would have attempted to adjust classroom assignments to comply with the or requirements, sought a variance to the requirements in accordance with State regulations, see 8 NYCRR ' 200.6(h)(6), or done nothing. Therefore, I decline to render any findings on the appropriateness of grouping the student with the proposed class during the 2010/[11] school year.
g. Delivery of IEP
A school district must have an IEP in effect at the beginning of each school year for each student with a disability in its jurisdiction. See 34 C.F.R. ' 300.323(a); 8 NYCRR ' 200.4(e)(1)(ii); Cerra, 427 F.3d at 194. While the parents claim that the CPSE failed to timely provide them a copy of the student’s IEP, I find that Ms. and Ms. credibly testified that the student’s parents were given a copy of the IEP at the end of the May 20, 2010 meeting (R. 327, 890-891; Ex. IHO-I at 5).
2. Appropriateness of Manhattan Children’s Center
Given my finding that the DOE failed to provide the student with a FAPE during the 2010/2011, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89.
I find that was appropriate because it provided the student with sufficient levels of specifically designed, individualized instruction to meet his unique educational needs. The student’s classroom at and lead teacher. The school day at was a total of six (6) hours. The student received individualized instruction utilizing for five (5) hours daily in five (5) domains: ( ), skills, skills, , and behaviors. Data on student performance on IEP goals were collected, graphed and analyzed daily. There were regular group instructional formats each day as well with support during small group learning. Progress reports were provided per year (Exs. P-F at 1, P-Y at 1).
In the area of , the student’s program included: , and (Exs. P-F at 1, P-Y at 1). By December 1, 2010, the student had mastered and to the corresponding objects (Ex. P-F at 1). By April 1, 2011, the student had mastered matching identical objects when presented with a array. He was also able to ) different objects to non-identical stimuli in an ). The student was able to cards in array (Ex. P-Y at 1-2).
In the area of , the student’s program included movements and directions (Exs. P-F at 1, P-Y at 1). By December 1, 2010, the student could independently imitate twelve (12) different movements from a model (Ex. P-F at 1). By April 1, 2011, the student had mastered imitating . In terms of one-step directions, the student was able to -directions independently. The student was , but sometimes to use the context. The student also for an by (Ex. P-Y at 2).
In the area of the student’s program included: , . By December 2, 2010, the student was able to without displaying ). The student could also independently hand. The student could also respond to this name by for at least when the (Exs. P-F at 1-2, P-Y at 3).
In the area of , the student’s program included: , ; ; ; and (Exs. P-F at 3, P-Y at 3). These skills were taught . A breaks down a task into small, measurable parts that can be taught as a chain to complete an entire task (Ex. P-F at 1-3).
By December 1, 2010, the student could of a of routine. The student could ( . The student was also (Ex. P-F at 1-3).
By April 1, 2011, the student was able to follow ( . Additionally, the student could . At the end of the day, the student could for . For , the was able to the independently. For . In the area of (Ex. P-Y at 3-4).
In addition to individualized instruction, the student also participated in support. This group targeted from a lead teacher, , , and . With support, the student also participated in a with a . In this setting, the , , and . (Exs. P-F at 1, P-Y at 3).
The student also received therapy and therapy as related services at . The student received of in a and ( in a setting weekly. of related services per week are co- or lead teacher from the student’s class which function to collaborate and coordinate services across multiple disciplines (Ex. P-F at 1).
By November 8, 2010, the student “had demonstrated nice progress in his receptive ( ) and some progress with ) since the beginning of the therapy.” In the area of skills, the student Ademonstrated nice eye contact during activities@ (Exs. P-G at 1-2, P-W at 1-2).
In an April 8, 2011 update, it was noted that was being used to assist the student’s production. While the , an , had been introduced to the student’s instruction at this time, he showed “minimal improvement and interest in it.” With respect to , the student was able to attend to motivating activities for up to ) minutes with little contact during activities (Ex. P-W at 1-2).
By April 4, 2011, the student’s therapy sessions focused on enhancing the student’s ability to use to and , increasing his and for greater success in home and classroom activities, improving his , arm and hand control for better accuracy with tasks, and skills to of when , tasks (Ex. P-X at 1).
The student continued to display , which limited his ability to take in cues from his , that information, and response. As a result, the student needed , and adults, , and . Occasionally, the student presented with such as (Ex. P-X at 1).
The student required a approach utilizing , and at a high rate throughout the day to and increase his . His consisted of on the , with the , and a (Ex. P-X at 1).
Following input, the student presented with skills, including improved , organization of his , and directions. The student also improved his ability to follow a obstacle course; however, he required , with occasional (Ex. P-X at 2).
In an effort to include families and ensure carryover and consistency between home and school, provided: (1) a ; (2) in the classroom; (3) , ; and (4) a parent month (Exs. P-F at 1, P-Y at 1).
An FBA was conducted on the student’s and implemented on November 22, 2010. By April 1, 2011, the to near . Another was conducted on the student’s when transitioning between activities (Exs. P-Y at 4, P-MM).
Alternatively, while the DOE argues that was inappropriate for the student because it did not offer the , parents need not show that their preferred placement provides every special service necessary to maximize the student’s potential in order to meet their burden of proof. See Frank G., 459 F.3d at 364-65.
3. Relevant Equities
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. ' 1412(a)(10)(C)(iii)(I); 34 C.F.R. ' 300.148(d)(1).
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. ' 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
In an August 2, 2010 letter, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at public expense (Exs. SD-4, SD-5, SD-6, P-B). See 20 U.S.C. ' 1412(a)(10)(C)(iii)(I); 34 C.F.R. ' 300.148(d)(1). There is also no contention or evidence indicating that the student’s parents were uncooperative with the CPSE, see 20 U.S.C. ' 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to was unreasonable (Ex. P-CC, P-DD), see Carter, 510 U.S. at 16.
Alternatively, while the DOE contends in its closing brief that the parents never intended to place the student in public school for the 2010/11 school year because they signed an enrollment contract with the on August 2, 2010, the parent’s pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of their failure to cooperate with the development of an IEP or their interference with the selection of an appropriate placement by the DOE (Ex. P-CC). Cf. T.Y. v. New York City Dept of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
1. The parents shall be reimbursed by the DOE for transportation costs they incurred between September 1, 2010 through January 5, 2011 within thirty (30)
days of the DOE’s receipt of proof-of-payment from the parents for such costs.
2. Consistent with the pendency provisions of Federal and State law, the student shall receive the following services at public expense effective January 5, 2011 until such time as the due process proceedings in this matter have completed, including any subsequent appeals:
(a) special education transportation;
(b) individual , per session; and
(c) individual , per session.
3. To the extent that the parents funded special transportation or other related services which the DOE was obligated to provide under the pendency provisions of Federal and State law, the parents shall be reimbursed for those costs by the DOE within thirty (30) days of the DOE’s receipt of proof-of-payment for such transportation and/or related services.
4. Where the student failed to receive related services to which he was otherwise entitled under the pendency provisions of Federal and State law, the DOE shall provide the student with additional services to compensate for those to which he was unlawfully denied.
5. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for the student’s tuition and other costs associated with the student’s placement at the for the 2010/11 school year. Dated: October 27, 2011
_______________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JS: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 17, 2011
PARENT
None
DEPARTMENT OF EDUCATION
1 Procedural Safeguards Notice, 9/13/05, 14 pages 2 Request, 10/18/10, 1 page 3 CPSE Consent for Evaluation, 10/18/10, 2 pages 4 Parent Placement Letter, 9/3/10, 1 page 5 Parent Letter, 8/20/10, 1 page 6 Parent Letter, 8/2/10, 1 page 7 CPSE Contact Notes, Undated, 1 page 8 Fiscal Year Information, 10/6/10, 5 pages 9 Authorization of IEP Change, 5/20/10, 1 page 10 Final Notice of Recommendation, 5/20/10, 1 page 11 Evaluation, 9/3/10, 9 pages 12 CPSE Review IEP, 5/20/10, 14 pages 13 Progress Report, 4/12/10, 2 pages 14 Declination Letter, 5/20/10, 1 page 15 Educational Progress Report, 4/7/10, 3 pages 16 Clinical Observation, 7/7/10, 4 pages 17 Evaluation Report 5/12/10, 14 pages 18 Evaluation, 5/6/10, 10 pages 19 Evalation, 9/3/10, 6 pages 20 Student Summary Report, Undated, 3 pages 21 Determination of Eligibility, 4/8/09, 2 pages 22 Final Notice of Recommendation, 4/8/09, 1 page 23 Approval for Services, 4/8/09, 1 page 24 CPSE IEP, 4/8/09, 16 pages 25 Declination Letter, 4/8/09, 1 page 26 Meeting Notice for CPSE, 3/23/09, 1 page 27 Observation, 3/5/09, 1 page 28 Educational Evaluation, 2/26/09, 4 pages 29 Evaluation, 2/26/09, 4 pages 30 Evaluation, 2/26/09, 5 pages 31 Social History, 2/25/09, 2 pages 32 Evaluation, 2/25/09, 6 pages 33 Consent for Initial, 1/26/09, 1 page 34 Waiver of Rights, 2/25/09, 1 page 35 Fax Cover Sheet, 2/25/09, 1 page 36 Request for Physical Exam, 2/17/09, 2 pages 37 Contact Sheet, 1/26/09, 1 page 38 CPSE Transition Planning, 1/14/09, 1 page 39 Referral to CPSE, 1/15/09, 1 page 40 Orientation, 9/7/10, 5 pages 41 Election Day , 11/2/10, 3 pages 42 Team Meetings, 10/4/10-6/14/11, 1 page 43 Grade Conference Agenda, 9/29/10, 1 page 44 Staff Development, 10/1/10, 1 page 45 Double Faculty Conference, 10/4/10, 1 page 46 Reminders, Undated, 1 page 47 Collaborative Team Meeting, 10/29/10, 2 pages 48 Collaborative Team Meeting, 11/16/10, 2 pages 49 Collaborative Team Meeting, 12/3/10, 2 pages 50 Log, 2010-2011 1 page 51 Citywide Meeting, 9/21/10, 1 page 52 Training, 11/2/10, 2 pages 53 Citywide Meeting, 11/12/10, 1 page 54 Professional Development Course, 11/3-11/12/10, 1 page 55 Chapter 683 Orientation Agenda, 7/1-7/2/09, 5 pages 56 Professional Development, 8/28-8/29/10, 7 pages 57 Double Faculty Conference, 10/5/09, 5 pages 58 Grade Conference Agenda, 10/28/09, 6 pages 59 Chapter 683 Orientation, 7/1-7/2/10, 5 pages 60 Professional Development, 10/5/09, 5 pages 61 Team Meeting, 1/13/10, 2 pages 62 Inquiy Team Meeting, 4/16/10, 1 page 63 Professional Team Log , 2009-2010, 12 pages 64 Fall Class Schedule, 2010-2011, 1 page 65 Variance Request Form, 12/3/10, 3 pages 66 Parent Training Workshops, 9/10-11/10, 11 pages 67 School Curriculum Undated, 25 pages 68 CPSE IEP, 12/23/10, 17 pages 69 Evaluation, 11/11/10, 4 pages 70 Final Notice Modification, 12/22/10, 1 page 71 Authorization of IEP Change, 12/22/10, 1 page 72 CPSE Meeting Notice, 12/15/10, 1 page 73 Prescription, 12/2/10, 1 page 74 Progress Report, 4/16/10, 1 page 75 Assessment, 5/5/10, 12 pages 76 Skills Tracking System 10/27/09, 1/21/10, 5/5/10, 3 pages
IMPARTIAL HEARING OFFICER
I Impartial Hearing Request 1/5/11, 13 pages II Letter from IHO 1/21/11, 5 pages III Letter from IHO 2/9/11, 2 pages
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 30, 2011
PARENT
A New York City DOE Answer and E-mail, 1/13/11, 3 pages B Letter from the Parent to the District, 9/20/10, 2 pages C Special Delivery Report, 2010-2011, 1 page D SITE Report, Undated, 3 pages E Report prepared by , 2/15/11, 2 pages F Educational Report, from , by , M.S. Ed., 12/1/10, 3 pages G Report, from , by , and , 11/8/10, 2 pages H Transportation Recommendation from , by , M.D., 8/ 25/10, 1 page I Subpoenas, 3/9/11, 5 pages J and Scoring Form, 6/28/10, 3 pages K Jose P. Stipulation, 7/28/88; 69 pages L , February 2009, 365 pages M Methodologies, Undated, 3 pages N Methodology, Undated 3 pages O District Placement Office Referral Form, Undated, 1 page P Qualification, Undated, 2 pages Q E1 Blank Form, Undated, 1 page R Assessment of Basic and , 10/20/10, 95 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 8, 2011
PARENT
S Parent and Provider Communication Book ( Therapy), 2009-2011 School Year, 33 pages T Parents’ Note, (Possible Placement for Student), Undated, 1 page U Revised subpoena, 3/30/2011, 3 pages V District Response to Parents’, 3/17/11 Document Production Request, 3/30/11,
230 pages
DEPARTMENT OF EDUCATION
77 Response to the Revised Subpoena, 4/7/11, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 12, 2011
PARENT
W Speech Progress Report, 4/8/11, 1 page X Progress Report, 4/4/11, 2 pages Y Educational Progress Report, 4/11/11, 4 pages Z Letter from Parents to CPSE Chairperson, 5/16/11, 2 pages AA Progress Report, 5/1/11, 3 pages BB and Progress Report, 5/1/11, 2 pages CC Enrollment Contract, 2010-2011, 2 pages DD Affidavitof Tuition Payment, 5/18/11, 1 page EE Progress Data, 2010-2011, 6 pages FF Parent E-mails, 2010-2011, 4 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 21, 2011
PARENT
HH Proof of Payment, 2010-2011, 6 pages. II Teacher Performance Rate Accuracy Form, Undated, 1 page JJ Data (student responses per minutes during TPRAs), Undated, 1 page. KK Data (TPRAs on Staff Working with Student), Undated, 1 page. LL - Revised Skill Tracking System, October 2010, 3 pages. MM , 11/22/10, 18 pages NN Data taken from student and graph of goals, 2010/2011, 117 pages
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
IV Interim Order on Pendency, 12/8/10, 4 pages
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] ) is a comprehensive strategy that dictates class structure and daily routine. It , , and socialization to eliminate (R. 56-57, 309-310; Ex. P-M at 1).
[3] The provides a standardized measure of developmental behavior in five (5) areas: . The ”) is a curriculum based developmental assessment for direct use with individual children, , and covers six (6) developmental domains. The is not standardized; however it provides a which can be in turn expressed as percentage delay (Ex. SD-28 at 1).
[4] The is designed to serve as a criterion-referenced skills assessment to be used to identify where to begin intervention and what potential objectives might be appropriate for a child’s Individual Education Plan (Ex. SD-19 at 1).
[5] The of children from of age. The is a self-administered questionnaire completed by caregivers (Ex. SD-17 at 3-4).
[6] The term “free appropriate public education” means special education and related services that B
[7] In or around November, 2010, the parents filed a due process complaint notice seeking some or all of the relief contained in the amended January 5, 2011 due process complaint notice which triggered the hearing before me (R. 1035; Exs. IHO-I, IHO-IV at 2). At some point after IHO December 8, 2010 Interim Order, the parents withdrew their original due process complaint notice concerning the 2010/11 school year which had triggered IHO jurisdiction (R. 1036, 1646).
[9] assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. 8 NYCRR ' 200.1(r).
[10] Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program. 8 NYCRR ' 200.1(kk).
[11] The Second Circuit has also determined that school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194.