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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: April 28 & 29, 2011
June 2, 3, 15, 17, 23, 2011
July 8, 2011
August 11, 2011
Actual Record Close Date: September 27, 2011
Compliance Date/Decision Date: October 11, 2011
Hearing Officer: Julie P. Passman, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 28, 2011
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
School Psychologist (Via Telephone) — DOE
Principal (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 29, 2011
Attorney — Student
Parents
DOE Attorney — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 2, 2011
Attorney — Student
Parents
DOE Attorney — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 3, 2011
Attorney — Student
Parents
DOE Attorney — DOE
(via Telephone) — DOE
— DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 15, 2011
Attorney Representing the Family — Student
Parents
Physical Therapist, Via Telephone — Student
Via Telephone — Student
Via Telephone — Student
Via Telephone — Student
Attorney Representing the — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 17, 2011
ESQ., Attorney — Student
Father — Student
Teacher (Via Telephone) — Student
Physical Therapist (Via Telephone) — Student
ESQ., Attorney — DOE
District Supervisor (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 23, 2011
Attorney — Student
Parents
Vocational Advisor, Via Telephone — Student
Building Coordinator, Via Telephone — Student
Executive Director, Kulanu, Via Telephone — Student
Therapy Supervisor, DOE, Via Telephone — Student
Attorney, via telephone — Student
Unit Coordinator,, Via Telephone — Student
Attorney — DOE
— DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 8, 2011
Attorney — Student
Parents
(Via Telephone) — Student
Chairperson (Via Telephone) — Student
DOE Attorney — DOE
Special Education Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 11, 2011
Attorney — Student
Parents
Transition Coordinator (Via Telephone) — Student
Placement Officer (Via Telephone) — Student
Attorney — DOE
— DOE
INTRODUCTION
On February 15, 2011, Mr. and Mrs. (“PARENTS”), parents of . (“STUDENT”), by their attorneys, the Law Offices of , P.C., requested an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1415[f] and § 1412[a][10][C]; Regulations of the Commissioner of Education (“Commissioner‟s Regulations”), 8 NYCRR Part 200; §504 of the Rehabilitation Act of 1973 (“§504”); and the United States Supreme Court decision Florence Country Sch. Dist. v. Carter, 510 U.S. 7, 114 S. Ct. 361 [1993]. PARENTS requested this hearing: (1) to challenge the New York City Department of Education‟s (“DOE”) alleged failure to provide STUDENT with a free appropriate public education (“FAPE”), including substantive and procedural deficiencies in the Individualized Education Program (“IEP”) and recommended placement; and (2) to seek funding/tuition reimbursement for their expenses for their unilateral placement of STUDENT at (“PRIVATE SCHOOL”) for the 2010-11 school year.
On February 22, 2011, I was appointed by the DOE as the impartial hearing officer in this matter pursuant to 20 U.S.C § 11415[f][3], Article 89 of the New York Education Law, and the Regulations of the Commissioner of Education, 8 NYCRR Part 200. A pre-hearing conference was held on March 22, 2011. On April 21, 2011, I granted the PARENTS‟ request for leave to amend their due process hearing request dated February 15, 2011. PARENTS submitted an Amended Hearing Request on April 21, 2011, and the impartial hearing timelines were reset which extended the original compliance date of May 4, 2011 to June 13, 2011.
The hearing on the merits commenced on April 28, 2011 and continued on April 29, 2011 at which time I granted PARENTS and DOE (collectively “PARTIES”) leave to brief a legal issue impacting PARTIES‟ presentations of their cases and adjourned the hearing until June 15th (Tr. 341-357, 376-77; DOE Ex. 13; PARENTS Ex. T). I received PARTIES‟ briefs on May 17th (PARENTS Ex. T1; DOE Ex. 13), and on May 23rd, I rendered an Interim Order. At my request,
1 PARENTS‟ Memorandum of Law was offered into evidence as a 14 page document including attachments. I sustained DOE‟s objections to the inclusion of the attachments in PARENTS Ex. T on the basis that the attachments exceeded the page limit set for the PARTIES‟ Memoranda of Law (Tr. 376); accordingly, the attachments were excluded from PARENTS Ex. T and were not considered my Interim Order dated May 23, 2011 (Tr. 931-32; IHO Ex. I). PARENTS Ex. T is an 11 page document which includes a one page cover sheet.
on May 24, 2011 the DOE Impartial Hearing Office issued a “Corrected” Interim Order (IHO
Ex. I).[2]
The hearing resumed on June 2, 3, 15, 17 and 23, July 8, and August 11, 2011. On April 28, June 17, July 14 and August 15, 2011, I granted PARENTS‟ requests to extend the compliance dates to accommodate witness availability and extensive testimony. The compliance date in this matter is October 11, 2011.
On August 11, 2011, the final day of the hearing, I granted PARTIES‟ request to brief the hearing issues, and in accordance with the briefing schedule, I received PARTIES‟ closing briefs on September 12th. Via email correspondence with PARTIES on September 19, 2011, I admitted PARTIES‟ briefs into evidence as Impartial Hearing Officer exhibits (IHO Exs. II & III). Appended to the record are lists of the people in attendance and the documents received into evidence.
I. BACKGROUND
STUDENT turned years old at the start of the 2010-11 school year and attended PRIVATE SCHOOL, a private day school for students with special needs located in t, New York. STUDENT is that (Tr. 1244). STUDENT was classified by the Committee on Special Education for the 2010-11 school year as a student with a Impairment. The classification is not in dispute at this hearing.
II. PARTIES’ Positions
A. DOE’s Position
DOE asserts that it offered STUDENT a FAPE for the 2010-11 school by complying with procedural requirements set forth in IDEA and developing an IEP that was reasonably calculated to enable STUDENT to receive educational benefits (IHO Ex. II). The DOE argues that PRIVATE SCHOOL was inappropriate and that the equities favor the DOE (IHO Ex. II).
DOE asserts that its Committee on Special Education (“CSE”) convened a duly constituted team on March 10, 2010 for STUDENT‟s IEP Annual Review (DOE Ex. 9). The following people attended the meeting in person: PARENTS; Ms. Nancy Levine, School Psychologist at CSE ; Ms. , District Representative and Special Education Teacher; and Mrs. , Parent Member (Tr. 30; DOE Ex. 9-2; PARENTS Ex. Q). The following people associated with PRIVATE SCHOOL attended by teleconference: Ms. , Social Worker; Ms. ; Mr. , Vocational Educator; Ms. , ; Ms. (Tr. 30; DOE Ex. 9-2; PARENTS Ex. Q).
Ms. testified that CSE received and considered the following documents provided by PRIVATE SCHOOL: STUDENT‟s progress reports in the areas of and (describing STUDENT‟s “ ” including statements and the need for verbal cues to maintain eye contact, prompt to attend and reinforcement to maintain motivation to work) (Tr. 32 & 53; DOE Ex. 2), (Tr. 32; DOE Ex. 3) (Tr. 32; DOE Ex. 4), (Tr. 32; DOE Ex. 5), (describing STUDENT‟s work in a where he receives the support of a coach and requires significant “assistance with focus” and “a good deal of verbal prompts”) (DOE Ex. 1; Tr. 32, 52-53); STUDENT‟s Transition Plan (Tr. 32; DOE Ex. 7), and STUDENT‟s Report Card (Tr. 32: DOE Ex. 8). Information gleaned from these reports was incorporated into STUDENT‟s 2010-11 IEP (Tr. 5261; see DOE Exs. 1-5 & 7-9). In addition, Ms. testified that at the March 10, 2010 IEP Annual Review meeting, the CSE considered and discussed the following findings and recommendations of PARENTS‟ private Evaluation conducted by Dr. R. on February 20 and 27, 2008: STUDENT “needs a calm, well-structured setting, with a high teacher-to-student ratio, specifically 12-to-1-to-1, which will provide him with the 1-on-1 attention that he needs.” (Tr. 50-51; DOE Ex. 6).
The CSE recommended STUDENT‟s 2010-11 IEP placement in a Special Class in a Specialized School for a 12-month school year (Tr. 33-36; DOE Ex. 9-1 & 9-13; PARENTS Ex. Q at p. 2). This placement represented change in the CSE recommended placement from the prior year when STUDENT‟s IEP provided for his placement in a in a Community School (Tr. 34). Ms. justified the more intensive placement based on STUDENT‟s need for “the support of a more small structured class” (Tr. 68); “we felt he would benefit from a 12-month school year” (Tr. 34). The CSE further recommended that STUDENT receive the following ten sessions weekly of related services: for forty-five minutes twice a week; for forty-five minutes twice a week; for forty-five minutes twice a week; for forty-five minutes twice a week; for forty-five minutes once a week; and for forty-five minutes once a week (DOE Ex. 9-15; PARENTS Ex. Q at p. 2). At the CSE meeting, PARENTS provided input that the 15:1:1 placement would be more appropriate than the 12:1:1 placement (PARENTS Ex. Q at p. 2). The 2010-11 IEP further provided for the support of a for the full day (Tr. 62; DOE Ex. 9-4 & 9-16). Small group instruction, and the were recommended to address off-task, behaviors (DOE Ex. 9-4; Tr. 62). The CSE recommended a “ ” based on input from PRIVATE SCHOOL staff (Tr. 62).
The IEP includes goals and short-term objectives in the areas of , , , reading, written expression, math, , and transition (Tr. 64; DOE Ex. 9-6 – 9-11). Ms. testified that PARENTS and PRIVATE SCHOOL professionals agreed with the goals developed at the CSE meeting (Tr. 66).
The DOE sent PARENTS a Formal Notice of Recommendation (“FNR”) dated June 10, 2010 recommending STUDENT‟s placement for the 2010-11 school year at at ”) located at (Tr. 23; DOE Ex. 10). DOE asserts that its 2010-11 IEP provided a 12-month school year program, and had a spot available for STUDENT as of the start of the 2010 summer program (Tr. 187).
Ms. testified that STUDENT would have been placed in Mr class with only eight students enrolled in the summer of 2010 (Tr. 188). Mr. a certified special education teacher and
29 year DOE employee (Tr. 270-72) testified that he that he has participated in professional development and training programs in a range of areas in special education, including: “learning differentiation styles”; crisis management; IEP development; alternate assessments; preparing students for independence; and job readiness (Tr. 272-74).
DOE points to Mr. ‟s testimony that had STUDENT attended the recommended placement: (1) he would have conducted informal assessments to assess STUDENT‟s skills, reading, writing, comprehension, math computation, , and issues (Tr. 282-87); and (2) STUDENT would have grouped with appropriate peers with similar levels of academic functioning (Tr. 294) and characteristic (Tr. 302-03).
DOE refutes PARENTS‟ allegations that as a new student at , STUDENT would have been ineligible to participate in a worksite program (PARENTS Exs. A-3 & E-1).
DOE rejects PARENTS‟ attorney‟s contention that the May 28 and December 18, 2010 Special Education Service Delivery Reports for (PARENTS Exs. M & N) raises valid concerns that STUDENT would not receive the 2010-11 IEP related services. (Tr. 12-15) DOE argues that the reports are not “probative” of whether STUDENT would have received related services had he attended the recommended placement (Tr. 15). Ms. testified that “any student who is unserved receives an RSA . . .” (Tr. 170), and students who received RSA would receive services during the school day (Tr. 201).
Mr. testified that he has observed related service providers and assisted the providers in implementing IEP goals and short-term objectives similar to the ones on STUDENT‟s IEP (Tr. 317-32, 390-402, 432-52; DOE Ex. 9-6, 9-7, 9-9 & 9-10). Mr. explained that he speaks with the about how he can implement the goals outside of the classroom (Tr. 393, 435), and he speaks with two or three times a week regarding students‟ goals (Tr. 453). He also testified to the strategies and approaches that he would have employed to implement and measure STUDENT‟s progress towards IEP goals and short-term objectives in the following areas: reading (Tr. 402-09; DOE Ex. 9-7); written expression (Tr. 409-16; DOE Ex. 9-8); math (Tr. 419-32; DOE Ex. 9-8); functioning (Tr.452-471; DOE Ex. 9-11); and transition (Tr. 47189; DOE Ex. 9-11). Mr. explained that he would have worked closely and communicated on a daily basis with STUDENT‟s crisis management paraprofessional in order to support STUDENT‟s independence (Tr. 488-92; DOE Ex. 9-12) and he would have implemented STUDENT‟s in conjunction with all of the “stakeholders” (Tr. 582-85; DOE Ex. 9-18). Finally, Mr. Gonzalez testified that he would have implemented STUDENT‟s IEP transition plan in collaboration with school‟s transition coordinator, related service providers, outside agencies and PARENTS (Tr. 492-99; DOE Ex. 9-17).
DOE asserts that PRIVATE SCHOOL does not provide STUDENT with appropriate special education services, since it is too restrictive, fails to conform to the least restrictive environment mandate and has failed to promote STUDENT‟s progress across all domains (IHO Ex. II at pp. 11-16).
DOE argues that the equities weigh against PARENTS, as the evidence establishes that PARENTS were never interested in a DOE placement and intended to continue STUDENT‟s enrollment at a private placement (IHO Ex. II). DOE rejects PARENTS‟ position that STUDENT‟s “unfortunate habit of remarking of people‟s color” and provide a valid basis for rejecting a CSE recommended placement if it included a racially mixed student population (Tr. 40, 42, 95-98).
B. PARENTS’ Position
STUDENT‟s father testified that during STUDENT‟s early educational experience, STUDENT attended DOE recommended placements at the , the , and the [ ] School (Tr. 1513-16). PARENTS participated in every annual CSE meeting, including STUDENT‟s March 10, 2010 IEP Annual Review meeting (Tr. 1515, 1517, 1573-76; Ex. 9-2). PARENTS assert that at the March 10, 2010 meeting, the CSE failed to consider “current, sufficient and appropriate evaluative and documentary material to justify its recommendations and goals” (PARENTS Ex. A-1 & A-2; see IHO Ex. III at p. 4). Ms. , DOE school psychologist, testified that the CSE based its recommendation primarily upon progress reports from PRIVATE SCHOOL (Tr. 32, 52-64). STUDENT‟s father testified that the CSE did not discuss any of the following: a classroom observation; a medical evaluation; a social history; Dr. ‟s February 2008 Psychological Evaluation which was “available to the committee”; a assessment; an assessment; a assessment; and a assessment (Tr. 89, 1518-20; DOE Ex. 6; PARENTS Ex. Q). STUDENT‟s father further testified that had the CSE requested that he make STUDENT available for DOE testing, he would have made student available as he had done in the past (Tr. 1520-21).
At the March 10, 2010 IEP Annual Review meeting, PARENTS informed the CSE that STUDENT was unavailable to attend summer school programming because he had plans to attend a five week sleepaway summer camp and to travel abroad (Tr. 337-38, 1523). Although the CSE recommended a 12-month school year program, the CSE failed to request that PARENTS sign a 12-month consent form, thereby violating the DOE‟s Standard Operating Procedures Manual (“SOPM”) (Tr. 337; see Tr. 1419-21, 1425, 1471, 1478, 1481-82, 1523-25; PARENTS Exs. R & FFF). PARENTS note that while the school year begins in July, attendance during the summer is not mandatory and placement during the summer months requires parental consent (Tr. 338, 1430, 1432).
PARENTS received the 2011-12 IEP about a month after the March 10, 2010 CSE meeting (Tr. 1522). PARENTS received a letter from the DOE dated June 10, 2010 which listed the Program Recommendation, Related Services, and Offered School for STUDENT and indicated that the recommended services would be “put into effect” for the 2010-11 school year” if the DOE did not hear back from PARENTS by June 24, 2010 (Tr. 1531-32; DOE Ex. 10). By letter dated June 21, 2010, STUDENT‟s father notified the DOE that due to difficulties in scheduling a school tour, he required additional time to respond to the placement offer (Tr. 153233; PARENTS Ex. D; DOE Ex. 10). On June 15, 2010, STUDENT‟s father toured the recommended 2010-11 IEP placement at with Mr. , School Unit Coordinator at at (Tr. 1534-36; PARENTS Ex. A-3, E-1). On June 23, 2010, STUDENT‟s father had a subsequent follow up phone conversation with Mr. (Tr. 1536; PARENTS Ex. E-1) ); however, Mr. s answers to STUDENT‟s father‟s questions “were generally evasive” (Tr. 1542). STUDENT‟s father explored the DOE website and found data related to STUDENT‟s recommended program (Tr. 1536-37; PARENTS Exs. M & N). The Special Education Delivery Report for at indicated that that “a high percentage of the total population” of students was awaiting services (Tr. 1537-38; PARENTS Exs. M & N).
By certified letter July 2, 2010, STUDENT‟s father notified CSE Chairperson, , of his detailed concerns with the proposed placement and his intent to continue STUDENT‟s enrollment at PRIVATE SCHOOL and have his attorney pursue funding for PRIVATE SCHOOL (PARENTS Ex. E-2). PARENTS did not receive a response to their concerns or an offer for an alternate placement (Tr. 1544-45).
PARENTS contend that Mr. told STUDENT‟s father that STUDENT would not be eligible for a worksite placement (Tr. 1543) at , even though STUDENT had prior worksite experience; this would have caused STUDENT to regress in his job readiness skills (Tr. 153940; PARENTS Exs. A-3 & E). PARENTS were also concerned that even if STUDENT was placed at a worksite at the recommended placement, STUDENT would not have had a accredited ; rather, “the adult who accompanies students at the work site is sometimes a paraprofessional: not an accredited work coach. This setting will detract from [STUDENT]‟s learning of any , and will cause him to ” (Tr. 1541; PARENTS Ex. E-1).
PARENTS assert that STUDENT‟s 2010-11 IEP Annual Goals and Short-Term Objectives were not appropriate and were not measurable (Tr. 1040-44, 1046-49; DOE Ex. 9-8).
PARENTS argue that STUDENT requires more academic instruction than the 48 minutes that STUDENT would have received at recommended placement at (Tr. 1502-03, 1542).
PARENTS argue that STUDENT would not have been appropriately grouped with the students in the DOE‟s proposed placement. Specifically, PARENTS assert that: (1) STUDENT would have been the oldest student in the class and would not have had “appropriate peer role models in the class (PARENT‟s E-1); and (2) STUDENT‟s functional reading level and the results of Dr. ‟s 2010 Psychological Evaluation reflect that STUDENT possesses stronger reading and math skills than the students in Mr. ‟ class. (Tr. 693-98); PARENTS Ex. P-43 – P6, see also DOE Ex. 6-4, 6-6). Dr. , a doctor of (“ .”), specializes in the “evaluation of children with developmental disabilities” (Tr. 1389-90). Dr. testified that she has conducted
PARENTS Ex. II was inadvertently admitted into evidence. PARENTS Ex. II is a duplicate of PARENTS Ex. P. several evaluations of STUDENT since she first evaluated STUDENT in 1994-95 (Tr. 1390). She explained that STUDENTS‟ “achievement has always been above where it should be, or would be predicted to be based on the IQ testing, which is further evidence that someone like [STUDENT], he kind of defies numbers. . . . And, in fact, he‟s , or the last time I tested him, some of the things range, which is way above where he should be . . . just the function of the testing makes it difficult for him because of his ” (Tr. 1396-97; see also Tr. 1404). The report indicates that STUDENT obtained
”) grade equivalent score of for Basic Reading and a grade equivalent score of for Numerical Operations, and therefore, PARENTS argue that STUDENT would have been the student for both reading and math in Mr. ‟s summer 2010 class as well as his September 2010 through June 2011 class (Tr. 695-98; PARENTS Ex. P).
PARENTS assert that STUDENT would have been “overwhelmed by the large number of students sharing the school facilities” at (Tr. 1541-42; PARENTS Ex. E-1). PARENTS were also concerned about “a clutter of equipment, electronic games, and so on, things that would district [STUDENT] from making use of the gym” (Tr. 1541; PARENTS Ex. E).
PARENTS contend that the DOE was unable to deliver all of STUDENT‟s 2010-11 IEP related services (ten per week) (Tr. 202-04; PARENTS Ex. A-4), as evidenced by (1) Ms. ‟s testimony all the students at may not have been provided with all of their related services (Tr. 169-70, 198-99; PARENTS Ex. M & N) and (2) Mr. ‟s testimony that none of the students in his class received ten periods of related services per week (none receive more than seven related services per week) (Tr. 673-77). Ms. , Supervisor of for District , testified that Related Service Delivery Reports from December 2010 and May 2010 accurately reported that students at were not receiving services in the school from school providers (Tr. 1085-86). PARENTS dismiss DOE‟s assertion that students who did not receive IEP related services would have their related services needs meet through the provision of RSAs (Tr. 16-17). PARENTS contend that services provided pursuant to RSAs would be delivered after school, and therefore, the RSA services are not comparable to IEP related services delivered during the school day by providers who have regular access and conversations with the teaching staff (Tr. 16-17). Moreover, there is no guarantee that a parent can locate an RSA provider (Tr. 1116). STUDENT‟s father testified that STUDENT would not be able to benefit from related services provided in the afternoon due to his “tiredness . . . and his general inability to concentrate” (Tr. 1550).
PARENTS argue that STUDENT‟s IEP Transition Plan was inadequate because the CSE neglected to identify any parties responsible for carrying out the plan – all of the boxes associated with “Responsible Party” were left blank (Tr. 496-505, 517-20, 560-64; DOE Ex. 917).
PARENTS assert that PRIVATE SCHOOL is appropriate for STUDENT. PRIVATE SCHOOL, a small special education school with 38 students, provides students with special needs with academic and vocational programs focused on students‟ individual needs and “positive adult outcomes” (Tr. 1234-35, Tr. 1545, PARENTS Ex. KK). STUDENT attends the Program at PRIVATE SCHOOL which focuses on students‟ development of skills (Tr. 123740). The class is well-staffed by Ms. (certified special education teacher), a teaching assistant assigned to class as a whole, and six paraprofessionals (one of whom works with STUDENT). STUDENT receives small group ELA instruction daily (Monday through Thursday) and math instruction three times a week (Tr. 956-57, 959-60, 968-72; PARENTS Ex. K). At PRIVATE SCHOOL, STUDENT receives extensive and appropriate related services (Tr. 1029) in the areas of , , and therapy. PRIVATE SCHOOL administrators, teachers, related service providers, and independently contracted providers hold professional certifications in the areas in which they work with STUDENT (Tr. 1136; PARENTS Ex. W). Moreover, PARENTS cite Ms. ‟s concession that at the time of the March 2010 CSE meeting, PRIVATE SCHOOL was providing STUDENT with the and management needs identified on the 2010-11 IEP (Tr. 111-12; DOE Ex. 9-3 & 9-4; IHO Ex. II at p. 28).
PARENTS assert that STUDENT has made progress at PRIVATE SCHOOL (Tr. 1556; PARENTS Exs. AA, BB, AAA). STUDENT‟s father testified that STUDENT is “better able to express himself . . . and tolerate or get adjusted to the work environment” (Tr. 1556). STUDENT‟s social relatedness has improved and his “academics were maintained” (Tr. 1556). STUDENT made behavioral progress at PRIVATE SCHOOL working with the school psychologist, , and through the implementation of an plan and the support of a full-time paraprofessional (Tr. 887-88, 913; IHO Ex. III at pp. 21-22).
PARENTS contend that the equities weigh in the favor. PARENTS have cooperated with the CSE by attending CSE meetings and visit the proposed 2010-11. STUDENT‟s father asserted that he was ready and willing to place STUDENT in a DOE program if it was appropriate for STUDENT to obviate the burden of “coming up with funding for a private school” (Tr. 1556). Moreover, PARENTS did not bind themselves contractually to PRIVATE SCHOOL for the 2010-11 school year until after the school year began (Tr. 1551, 1553-54; PARENTS Exs. X & U).
PARENTS request reimbursement for 2010-11 PRIVATE SCHOOL tuition, costs, fulltime crisis management paraprofessional, related services and transportation (Tr. 1551-55; PARENTS Ex. A; see aslo PARENTS Exs. L, U, X, Y, Z & JJ).
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Legal Framework and Standard
The central purpose of IDEA is “to ensure that all students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400[d][1][A]; Forest Grove Sch. Dist. v. T.A., S. Ct. 2484, 52 IDELR 151 (2009). A free appropriate public education means special education and related services that have been provided at public expense and are provided in ‘V.D. v. N.Y. City Bd. of Ed., 465 F.3d 503, 507, 46 IDELR 181 [2d Cir. 2006] quoting Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 [2d Cir. 2002]. It is “a written statement that „sets out the child‟s present educational performance, establishes annual and shortterm objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.‟” Id. at 508 quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 [1988]. “The IEP must provide „special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.‟” T.K. and S.K. ex rel. L.K., v. New York City Dep‟t of Educ., 10 CV 00752, 56 IDELR 228, 111 LRP 30 [E.D.N.Y. 2011] quoting A.D. & M.D. ex rel. E.D. v. Bd. of Ed., 08 CV 9424, 690 F. Supp. 2d 193, 54 IDELR 9 [S.D.N.Y. 2010] quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 [2d Cir. 2007]. “A school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.” New York City Dept of Educ. v. V.S., 10 CV 05120, 57 IDELR 77 [E.D.N.Y. 2001] quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 [2d Cir. 2005].
Students with disabilities must be educated in the least restrictive environment to enable them “to be educated with nondisabled students to the maximum extent appropriate” (8 NYCRR § 200.6 [a][1]) and “that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved.” 8 NYCRR § 200.1[cc]; Rowley, supra; see Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993].[4]
A school district may be required to pay for educational services that parents arrange for the student where the three-pronged criteria are met: (1) the educational services offered by the school district are found to be inappropriate to meet the student‟s needs; (2) the services selected by the parents are determined to be appropriate;[5] and (3) equitable considerations favor the parents‟ request for reimbursement. 20 U.S.C. §§ 1412[a][10][C], 1415[i][2][C][iii]; Sch. Comm. of Burlington v. Dep‟t of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. v. Carter, 510 U.S. 7 [1993]. The three-pronged framework articulated in Burlington and Carter is often referred to as the “Burlington/Carter” analysis for tuition reimbursement.
The New York State Legislature amended the Education Law to place the burden of production and persuasion on the school district in an impartial due process hearing pursuant to §4401[1] of Education Law to challenge the recommendation of a CSE, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and the burden of persuasion regarding the appropriateness of such placement. Educ. L. § 4404[1][c], as amended by Ch. 583 of the Laws of 2007, effective October 14, 2007. Accordingly, DISTRICT bears the burden of proof to establish the appropriateness of its recommended placement and PARENTS bear the burden of proof to establish the appropriateness of its private placement.
B. Prong I: Appropriateness of DISTRICT’s Placement Recommendation
Prong I of the Burlington/Carter analysis addresses whether the school district afforded STUDENT a FAPE. This assessment involves both substantive and procedural considerations. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998].
1. Procedural Requirements
While IDEA sets forth procedural requirements, a hearing officer may find that a procedural violation amounted to a deprivation of FAPE “only if the procedural inadequacies –
(I) impeded the child‟s right to a free appropriate public education; (II) significantly impeded the if the school district is justified in removing the student from the regular education environment, “whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.” Mr. and Mrs. P v. Newington Bd. of Ed., 546 F.3d 111 [2d Cir. 2008], K.B v. Nebo Sch. Dist., 379 F.3d 966 [10th Cir. 2004].
parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents‟ child; or (III) caused a deprivation of educational benefits.”[6] 20 U.S.C. §1415[f][3][E][ii]; 8 NYCRR §200.5[j][4][ii]; R.K. ex rel. R.K. v. New York City Dep‟t of Educ., 09 CV 4478, 56 IDELR 168 [E.D.N.Y. 2011]; R.K. ex re. R.K. v. New York City Dep‟t of Educ. 56 IDELR 212 [E.D.N.Y. 2011] (adopting magistrate judge‟s report and recommendation at 56 IDELR 168); A.H. v. New York City Dep‟t of Educ., 652 F. Supp.2d 297 [E.D.N.Y.2009].
Federal and state law requires the CSE to review each student‟s IEP at least annually. “In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation . . .” (emphasis added) 8 NYCRR §§ 200.4[d][2], 200.4[f][1]; 20 U.S.C. §1414[d][4][A][i]; 34 C.F.R. §300.324[a]. The IEP must be revised as necessary to address any lack of expected progress, the results of any reevaluation conducted pursuant to state and federal laws, and information about the student provided by or to the parents. 20 U.S.C. §1414[d][4][A][ii]; 8 NYCRR §200.4[f][2]. A CSE must arrange for a reevaluation of a student with a disability at least once every three years or when “the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise.” 8 NYCRR §200.4[b][4].
PARENTS assert that the DOE failed to consider the results of the most recent evaluation and neglected to consider the need for updated evaluations or an observation of STUDENT. Ms. Levine, CSE 9 school psychologist, participated in STUDENT‟s March 10, 2010 IEP Annual Review meeting (Tr. 29-30). Ms. holds a Bachelor‟s Degree in Psychology, a Master‟s in Education and advanced certification School Psychology (Tr. 29), and she has worked with students classified with , . She also conducts assessments (Tr. 29). While Ms. ‟s credentials support her competency in the area of assessments of students with disabilities, her reliability in this area was diminished by her concession that she was unaware when the last evaluations or standardized testing were conducted in the areas of , , and , yet she neglected to suggest that the CSE consider the need obtain updated testing in these areas of critical need for STUDENT (Tr.
117-21). It is important to note that Ms. acknowledged that she had never met or observed STUDENT (Tr. 82). The CSE‟s failure to consider updated testing is particularly troubling given the fact that: (1) the 2010-11 IEP placement in a in a specialized school represented a shift to a more restrictive setting from the 2009-10 IEP which recommended a student to teacher ratio in a community school (Tr. 33-34, 105); and (2) the CSE made its recommendation for a change to a more restrictive setting over PARENTS‟ input that they favored the program (Tr. 35-36).
Ms. ‟s ambiguous and somewhat contradictory testimony regarding whether the CSE considered the private Psychological Evaluation further eroded her credibility on the issue of whether the committee reviewed this evaluation (Tr. 50, 89). STUDENT‟s father testified that the Evaluation was “available to the committee, but it was not discussed during the meeting. . . . It was in the room, in the hands of Ms. . . .” (Tr. 1518-19) Casting further doubt on whether the CSE considered the private Psychological Evaluation, the DOE‟s Amended Due Process Response dated March 16, 2011 reflects that the CSE did not rely on a “Psychoeducational evaluation” in making its recommendation at the March 10, 2010 Annual Review meeting (PARENTS Ex. C-27).
The evidence indicates that at STUDENT‟s March 10, 2010 IEP Annual Review meeting, the CSE sidestepped state and federal requirements by: (1) relying exclusively on progress reports and verbal input from PRIVATE SCHOOL staff in developing STUDENT‟s 2010-11 IEP; (2) neglecting to consider the need for updated DOE formal evaluations in the areas of , and and observations of STUDENT (Tr. 116); and (3) failing to discuss Dr. ‟s 2008 private Evaluation with the CSE members, the only formal evaluation identified at the hearing (Tr. 3133, 52-64, 89-90, 115-16; DOE Exs. 1, 2, 3, 4, 5 & 6-7). 20 U.S.C. §1414[d][4][A][i]; 8 NYCRR §200.4[f][1].
The failure to explore the need for updated evaluative information combined with the CSE‟s failure to review and discuss the one evaluation available at the CSE meeting, namely an evaluation obtained by PARENTS, resulted in an incomplete portrait of STUDENT in the IEP present levels of performance, vague annual goals, and a deficient (see infra “Substantive Requirements” section) and ultimately “impeded” STUDENT‟s right to a FAPE. R.E. & M.E. ex rel. M.E. v. New York City Dep‟t of Educ., 10 Civ. 3176, 111 LRP 19101 [S.D.N.Y]
7 Cf. DOE Ex. 12-2 (DOE‟s Due Process Response dated February 25, 2011 indicates that the DOE did rely on a “ evaluation”)
(reinstating IHO‟s finding of a denial of FAPE where DOE failed to conduct its own testing and relied exclusively on private school reports, ultimately recommending a program that contradicted the private school‟s recommendation for instruction).
PARENTS assert that the CSE improperly developed a (“ ”) without first conducting or reviewing a Functional Behavior Assessment8 (“FBA”), and as a result, the fails to: (1) sufficiently describe STUDENT‟s ; (2) develop appropriate intervention strategies; (3) provide a hypothesis for why the occurs; and (4) propose appropriate intervention strategies (Tr. 13233; PARENTS Ex. A-3; DOE Ex. 9-18; IHO Ex. III at p. 9). The Commissioner‟s Regulations require the CSE to consider the development of a BIP for a student with a disability when “the student exhibits persistent behaviors that impede his or her learning or that of others. . .” 8 NYCRR 200.21[b]. The Commissioner‟s Regulations state that a is “based on the results of a [FBA] and, at a minimum, includes a description of the , global and specific hypotheses as to why the strategies that include supports and services to address the .”[8] NYCRR §200.1[mmm]. While the DOE‟s failure to conduct an FBA is inconsistent with the procedural requirements set forth in the Commissioner‟s Regulations, courts have held that failure to conduct an FBA is not a per se violation of FAPE “so long as the student‟s behavioral needs were addressed.” A.L. and V.R., ex rel. v. New York City Dep‟t of Educ., 10 CV 684, 57 IDELR 69, 111 LRP 52959 [S.D.N.Y. 2011] citing A.C. ex re. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 51 IDELR 147 [2d Cir. 2009] (where “the CSE went through each behavior and used the information provided by [the private school] to craft the IEP and BIP”, the district court found that the “CSE fulfilled the purpose of the FBA and the IEP was legally adequate”). Here, the DOE‟s failure to comply with the procedural requirement of conducting an FBA ultimately “impeded” STUDENT‟s right to a FAPE by resulting in a substantively flawed BIP which lacks the essential components of such a plan (see infra “Substantive Requirements” section).[9]
PARENTS assert that STUDENT‟s IEP Annual Goals and Short-Term Objectives are not measurable and fail to reflect and address all areas of need and current levels of abilities10 (IHO Ex. III at p. 10-11; DOE Exs. 9-6 – 9-12). The Commissioner‟s Regulations mandate that the IEP shall include the following:
(iii) Measurable annual goals. (a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals must relate to:
(1) meeting the student‟s needs that result from the student‟s disability to enable the student to be involved in and progress in the general education curriculum; and
(2) meeting each of the student‟s other educational needs that result from the student‟s disability.
(b) 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.
(c) The IEP shall identify when periodic reports on the progress the student is making toward the annual goals (such as through the use of quarterly or other periodic reports that are concurrent with the issuance of report cards) will be provided to the student‟s parents.
(iv) Short-term instructional objectives and benchmarks. For a student who takes a New York State alternate assessment and for each preschool student with a disability, the IEP shall include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student‟s present level of performance and the measurable annual goal.
8 NYCRR §200.4[d][2][iii]-[iv]; see also 34 C.F.R. §300.320[a][2]-[3].
Some of STUDENT‟s annual goals and short-term objectives are not objectively measurable, failing to list any evaluative criteria. For example, STUDENT‟s annual goal for Reading states: “By the end of the school year, [STUDENT] will demonstrate improved ability to respond to reading comprehension questions as observed by teacher” (Tr. 1039; DOE Ex. 9-
7) STUDENT‟s PRIVATE SCHOOL teacher, , testified that from looking at the goal, she could not determine the baseline of performance from which to measure progress (Tr. 1039-40) STUDENT‟s annual goal for Written Expression states: “By the end of the school year, [STUDENT] will demonstrate improved ability to express himself clearly in writing as observed by teacher” (Tr. 1043-44; DOE Ex. 9-8). Ms. further testified that this goal fails to indicate a baseline of performance and does not indicate how much improvement is necessary for STUDENT to meet the goal (Tr. 1043). The absence of any baseline performance and objective criteria to assess progress towards STUDENT‟s Reading and Writing goals not only violates the procedural requirements of state and federal law, but renders the IEP goals in these core academic areas useless. DOE relied extensively on testimony from Mr. , special education teacher at at , to establish the measurability of STUDENT‟s 2010-11 IEP annual goals and short-term objectives. While testified that he had never met STUDENT (Tr. 592), he offered a rambling stream of consciousness attesting to how he would measure STUDENT‟s progress using the IEP goals (Tr. 405-408, 411-13, 422-32, 441-44, 447). I give Mr. ‟s testimony little weight with respect to the measurability of the IEP goals, and I find that the absence of measurable goals would prevent the proposed placement from effectively promoting STUDENT‟s authentic academic progress. Accordingly, the absence of measurable IEP annual goals “impedes” STUDENT‟s right to FAPE and would have “caused a deprivation of educational benefits.” 20 U.S.C. §1415[f][3][E][ii]; 8 NYCRR §200.5[j][4][ii]; see M.H. and E.K. ex rel. P.H., 712 F. Supp. 2d 125, 54 IDELR 221 [S.D.N.Y. 2010] (finding a deprivation of a FAPE where IEP goals were generic); see infra “Substantive Requirements” section for further discussion of STUDENT‟s IEP goals.[11]
PARENT‟s assert that STUDENT‟s transition plan is inadequate as it sets forth a list of vaguely described services and fails to indicate the person(s) or entity responsible for providing these services (PARENTS A-3; DOE Ex. 9-17). The Commissioner‟s Regulations require that an IEP must include:
(ix) Transition services. For those students beginning not later than the first IEP to be in effect when the student is age (and at a younger age, if determined appropriate), and updated annually, the IEP shall, under the applicable components of the student‟s IEP, include:
(a) under the student‟s present levels of performance, a statement of the student‟s needs, taking into account the student‟s strengths, preferences and interests, as they relate to transition from school to post-school activities as defined in section 200.1(fff) of this Part;
(b) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment and, where appropriate, independent living skills;
(c) a statement of the transition service needs of the student that focuses on the student‟s courses of study, such as participation in advanced-placement courses or a vocational education program;
(d) needed activities to facilitate the student‟s movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation; and
(e) a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting.
8 NYRCC §200.4[d][2][ix]
I note that Instructional Activities on the transition plan are vague, and the sentence describing one of the two instructional activities is an incomplete: “He will work on social skills that will help [sic]” (Tr. 497; DOE Ex. 9-17).
The most striking flaw in the transition plan is the wholesale omission of the party or parties responsible for implementing the transition services. 8 NYCRR §200.4[d][2][ix][e]. Despite the fact that all of the boxes representing “Responsible Party” are left blank, Ms. testified that STUDENT would be unable to access independently the transition services listed on the transition plan; rather, STUDENT would need the help of “the school and the parent” (Tr. 130-31; DOE Ex. 9-17). Specifically, Ms. indicated that STUDENT would need assistance with the following transition services: “instructional activities that will prepare him for real life”; participation in “community based activities”; “explor[ing] post school programs and mak[ing] connections with agencies such as [sic]”; and “develop[ing] self help skills in preparation for independent living” (Tr. 130-31; DOE Ex. 9-17). Ms. ‟s casual comment that “once [STUDENT] gets to the placement where he‟s going, they could discuss who would be responsible for each specific area” (Tr. 72) does cure the omissions in the transition plan.
DOE acknowledged deficiencies in virtually every area of the transition plan. In fact, DOE questioning of its own witness was premised on its acknowledgement of multiple omissions in the transition plan. DOE attorney‟s examination of Mr. followed this pattern:
“The responsible party section is left blank in this box as well. If you had wanted to make changes to this section, what would you have done?” (Tr. 574; DOE Ex. 9-17). Mr. testified that if he received STUDENT‟s IEP, he “would have checked all [of the boxes]” thereby identifying parents, school, student and agency as responsible parties for implementing the instructional activities on the transition plan (Tr. 500, 560). Mr. further testified that if a parent does not have an agency, then the transition coordinator at the school will put together a list of agencies in STUDENT‟s neighborhood (Tr. 504-06, 561-65, 570, 572-73, 580; DOE Ex. 9-17). Mr. rambled on about the extensive list of stakeholders who would be responsible for implementing STUDENT‟s transition plan (Tr. 493-98, 502, 516-17). Mr. explicitly acknowledged the deficiencies in the description of the transition services in the area of Independent Living, testifying that he would have followed “protocol” to revise the transition plan to check the boxes indicating that parent, school, student and agency would be responsible for implementing this transition services to promote independent living (Tr. 575-76).
Moreover, the transition plan does not address Acquisition of Daily Living Skills for STUDENT – all boxes in this section are un-marked (Tr. 575-76; DOE Ex. 9-17). Mr. testified that if he received this transition plan he would have followed protocol to make changes – he would have checked boxes indicating that STUDENT requires services to support the “ ” and STUDENT should be given a “ ” (Tr. 576; DOE Ex. 9-17). Mr. testified repeatedly that the IEP is a “living document” and can be changed by convening the CSE (Tr. 515-16, 519-20, 560-65, 570-71, 575-79).
Ample DOE testimony asserting that staff at the proposed placement would have cured omissions in the transition plan is unpersuasive and insufficient to remedy the extensive deficiencies. The sufficiency of the IEP is determined from the content within the four corners of the IEP. R.E. v. New York City. Dep‟t of Educ., 10 CV 3176 [S.D.N.Y. 2011] citing D.S. v. Bayonne Bd. of Educ., 602 F.3d 553 [3d Cir. 2010]. This rule enables parents to formulate any claims they might have based on the IEP and prevents the school district from relying on arguments about the services it “could have provided if it had been so inclined.” R.E. supra, quoting Dumont Bd. of Educ. v. J.T., No. 09 Civ. 5048, 2010 U.S. Dist. LEXIS 45413, 2010 WL 1875584 [D.N.J. May 10, 2010] (“Under the IDEA, however, „in determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined.‟”) quoting Lascari v. Bd. of Educ., 116 N.J. 30, 560 A.2d 1180, 1189, 44 IDELR 565 [N.J. 1989]. DOE testimony that staff members at the proposed placement would have filled in the blanks in the hollow transition plan merely highlights the inadequacy of the plan. As an year old STUDENT with and transition to post-secondary activities looming, it was critical that STUDENT‟s transition plan list appropriate transition services and the parties responsible for providing those services. Accordingly, the CSE‟s failure to include the requisite components of a transition plan as outlined in the Commissioner‟s Regulation impeded STUDENT‟s right to a FAPE and would have caused a deprivation of educational benefits.
I find that PARENTS had an opportunity to meaningfully participate in the development of STUDENT‟s 2010-11 IEP. STUDENT‟s father attended the IEP Annual Review and voiced his concerns regarding STUDENT‟s placement in a class. STUDENT‟s father suggested that a class could be more appropriate (Tr. 1587-89; PARENTS Ex. Q-2). Accordingly, I find that PARENTS and PRIVATE SCHOOL staff, people most familiar with STUDENT‟s current academic and social/emotional functioning, were afforded an opportunity to participate in the development of STUDENT‟s 2010-11 IEP.[12]
While it is unclear from the record whether the DOE sought PARENTS‟ written consent to a 12-month program, it is not relevant to the determination whether the DOE offered the STUDENT an appropriate placement for the 2010-11 school. At the March 2010-11 CSE meeting, the CSE recommended a 12-month school year (DOE Ex. 9-1). The DOE sent PARENT a Formal Notice of Recommendation on June 10, 2010 which indicated: “If we do not hear from you by June 24, 2010, the recommended services will be put into effect for the 2010-
11 school year” (DOE Ex. 10-1). Mr. , CSE Chairperson, testified that if parents do not consent to the initial placement for the “six-week summer program,” then the school “would obtain consent when the child arrived” (Tr. 1425-26), and if the parents do not consent, “we still make an offer” (Tr. 1427, 1433). Moreover, if a parent declines the summer component of the recommended 12-month program, the recommended program would continue to be available in September, although the placement (i.e. location) might change (Tr. 1427, 1433, 1436-37). Mr. ‟s testimony was substantiated by , DOE Special Education Evaluation, Placement and Program Officer (Tr. 1467-78, 1481-84). PARENTS informed the CSE at the March 10, 2010 meeting that STUDENT would be for special needs children “for a period of five weeks during the summer, which correlates with the summer period during which school is in effect, and that [STUDENT] will not be available for a summer session of the school” (Tr. 1523). While PARENTS written consent would have been required “prior to initial provision of special education services in a 12-month special service and/or program” (8 NYCRR §200.5(b)(1)(ii)), PARENTS decision to opt out of those services eliminated the need for written consent.
Accordingly, I find that DOE impeded STUDENT‟s right to a FAPE by failing to comply with IDEA‟s procedural requirements relating to evaluations, , measurable annual goals, and transition plans.
2. Substantive Requirements
“[A] school district complies with [the] IDEA‟s substantive requirements if a student‟s IEP is „reasonably calculated to enable the child to receive educational benefits.‟” Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 44 IDELR 89 [2d Cir. 2005] quoting Rowley supra. “A school district is not, however, required to furnish „every special service necessary to maximize each handicapped child‟s potential.‟” Id. quoting Rowley. A “„school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.‟” Cerra quoting Walczak; see also M.H. and E.K. ex rel. P.H., 712 F. Supp. 2d 125, 54 IDELR 221 [S.D.N.Y. 2010] (internal quotations omitted).
DOE relied extensively on Mr. s testimony to establish the appropriateness
STUDENT‟s 2010-11 IEP and the DOE‟s recommended placement; however, it is important to keep in mind that Mr. testified that he had never met STUDENT (Tr. 592). Mr. testified that he has worked for the DOE at teaching for 29 years (Tr. 594-95). While the duration of his employment could serve to bolster his credibility with respect to his knowledge about the recommended placement, his reliability was compromised by his shaky memory about the time period at issue – Mr. apologized for his imprecise recollection of the composition of his class for the 2010-11 school year (Tr. 274, 607-08, 694). Throughout his five days of testimony, Mr.
provided protracted and meandering responses to questioning; however, there was never cause to doubt his integrity.
PARENTS assert that STUDENT‟s IEP Annual Goals and Short-Term Objectives fail to reflect and address all areas of need and current levels of abilities.[13] In M.H. and E.K. ex rel. P.H, supra, the court found that annual goals and short-term objectives that “were not tailored to [the student‟s] unique needs and abilities” ultimately resulted in a denial of FAPE. Ms. s, the person most familiar with STUDENT‟s needs and level of academic functioning, provided credible testimony that the IEP reading goal and its accompanying short-term objectives targeted at critical thinking and text-to-text connections were too abstract for STUDENT whose thinking is “ ”; this goal is inappropriate and could not be mastered during the school year (Tr. 104042; DOE Ex. 9-7). Ms. further testified that STUDENT‟s goals were not appropriate to address STUDENT‟s (Tr. 1046-49; DOE Ex. 9-8). Ms. , STUDENT‟s “job coach”, testified that the Transition goal‟s short-term objective addressing STUDENT‟s ability to skills and to work was inappropriate, as STUDENT does not work towards (Tr. 1169; DOE Ex. 911). I do not give much weight to Mr. ‟s testimony that he could have implemented any of STUDENT‟s IEP goals and short-term objectives – he lost credibility by testifying that he could have implemented STUDENT‟s goals and objectives in related service areas ( , and ) for which he did not establish any credentials (Tr. 317-32, 396, 401-02, 437-46; DOE Ex. 9-6 – 911). Accordingly, I find that the IEP goals and short-term objectives identified above are inappropriate for STUDENT.
STUDENT‟s BIP does not adequately address STUDENT‟s and fails to include the essential elements of a (DOE Ex. 9-18). The Commissioner‟s Regulations required that a identify:
(i) the baseline measure of the , including the frequency, duration, intensity and/or latency of the . Such baseline shall, to the extent practicable, include data taken across activities, settings, people and times of the day. The baseline data shall be used as a standard to establish performance criteria and against which to evaluate intervention effectiveness;
(ii) the intervention strategies to be used to alter antecedent events to prevent the , teach individual alternative and to the student, and provide consequences for the (s) and alternative acceptable s); and
(iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals.
8 NYCRR §200.22[b][4].
The record is fraught with testimony documenting STUDENT‟s that significantly interfere with his learning (Tr. 1017; see also Tr. 45, 56, 62, 73-74, 95-96, 99-102, 112, 800, 804, 844-46, 870, 872, 875, 890, 891, 908, 1010, 1014, 1508-10). Of particular concern, STUDENT exhibits “ ” of a female staff member at PRIVATE SCHOOL (Tr. 45, 99-100, 866, 871-873, 890-93, 915, 919, 921). Ms , DOE school psychologist, testified that she was aware of STUDENT‟s (Tr. 45) and this was discussed at the CSE meeting (Tr. 100), yet the CSE neglected to target STUDENT‟s in the (Tr. 131-32; DOE Ex. 9-18) and did not make any reference to this behavior anywhere in the IEP (Tr. 100). By ignoring STUDENT‟s inappropriate touching, the BIP inadequately describes STUDENT‟s behaviors that interfere with learning as follows:
[STUDENT] has difficulty with focus and staying on task. His random outbursts and perseverative, have decreased. (DOE Ex. 9-18)
The recommended strategies to change the above behaviors are listed vaguely:
with and use of para. [STUDENT] plan with him which helps reinforce what he needs to do. He needs . (DOE Ex. 9-18]
The also neglects to address the frequency, duration, intensity and/or latency of the targeted listed, fails to provide supporting data on , and there is no mention of a schedule to measure the effectiveness of the interventions (DOE Ex. 9-18). 8NYCRR § 200.2[b][4]. Absent entirely from the are hypotheses as to why the problem occurs (DOE Ex. 9-18). 8 NYCRR §200.1[mmm]. Ms. , PRIVATE SCHOOL job coach who holds a Master‟s in Behavioral Disorders and is certified as a special education teacher, provided credible testimony addressing absurdity and inadequacy of the : “I find it odd actually that it says his random outbursts and perseverative behaviors [] have decreased . . . – if they‟ve decreased why are you writing a behavior plan to address those behaviors. . . .” (Tr. 1177). She further stated that the lacked “prompt levels, levels of mastery with which to properly ga[u]ge success. . .” (Tr. 1177-78).
In his rambling and convoluted testimony, Mr. stated that the could have been implemented in the recommended placement (Tr. 583-87). His vague expansive testimony was unpersuasive. When asked who would have implemented the Mr. responded obtusely, chanting his familiar mantra: “Again, all of the stakeholders would be involved” (Tr. 583). Therefore, I do not accord Mr. testimony much weight with respect to the appropriateness of
STUDENT‟s . In discounting Mr. ‟s testimony, I echo the reasoning of the court in R.K. where it rejected the DOE‟s “invitation to the Court to overlook the deficiencies in the IEP based on subsequent testimony that the recommended placement might have later sought to cure those deficiencies. . . . The adequacy of the DOE‟s proposed placement should be measured against what the DOE actually offered R.K. at the time, not on the basis of the information disclosed the following year, at the IHO hearing, as to what that placement might gratuitously have included.” R.K., supra.
The court in R.K. noted that “New York regulations and judicial precedent both require that the IEP do more than simply describe the and identify „goals and objectives.‟ BIPs must contain „intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences . . . .‟ 8 N.Y.C.C.R.R. § 200.22(b)(4).” R.K., supra. Moreover,
IEPs lacking an FBA and BIP must offer adequate equivalent benefits, for example, by providing the child with a personal aide and/or detailing a strategy to address the interfering behavior. See T.Y., 584 F.3d at 419;
M.H., 712 F.Supp.2d at 158-59. Merely describing problematic behavior and listing several goals for improvement are not adequate substitutes for the FBA and BIP. Id.
The court found that the “omission of an FBA and BIP was particularly significant, as they are tools designed to address the kinds of interfering behaviors that [the student] displayed; absent an FBA and BIP, these behaviors were likely to continue to impede her learning and development.” Id. In the instant matter, there is no evidence in the record that the provision of a 1:1 crisis management paraprofessional would have cured the flawed BIP. It is unreasonable to assume that STUDENT‟s crisis management paraprofessional, possibly holding just a high school diploma and a Teaching Assistant Level I certificate (no college degree required by DOE) (PARENTS Ex. S), would possess the skills to develop an appropriate BIP and compensate for the omissions of CSE members holding advanced professional degrees. The 1:1 paraprofessional could not be expected to develop “intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior” (8 NYCRR §200.22[b][4][ii]), largely because the IEP makes absolutely no reference to “the behavior” at issue ( member)[14] (Tr. 100). Accordingly, I find that the deficiencies in the BIP described above constitution substantial omissions and deprived STUDENT of a FAPE.
The students on Mr. class roster for the 2010-11 school year ranged in age from 18 to 20 (Tr. 651-52). Had STUDENT enrolled in the recommended placement, he would have turned 18 shortly after the start of the school year (PARENTS Ex. A-1; DOE Ex. 9-1); therefore, he would have been grouped with students of similar age. Based on the evidence, the DOE recommended placement would have afforded STUDENT a class with peers with similar academic abilities,[15] although STUDENT would have likely been at the upper range of academic levels and abilities. Mr. testified, albeit with a shaky memory first, that the students in his class had reading comprehension and decoding skills ranging from or level through the or level16 (Tr. 693-96; see DOE Ex. 9-3). Mr. also testified that students in his class had math skills ranging from the through the grade level. The upper end of these ranges correlates with the level reported on STUDENT‟s IEP (DOE Ex. 9-3). PRIVATE SCHOOL reports indicate that STUDENT was reading at a grade level in December 2010 and March 2011 and at the grade level at the end of the 2010-11 school year (PARENTS Ex. AA-2, BB-4 & AAA-2); in addition, STUDENT‟s teacher, Ms. testified that during the 2010-11 school year, STUDENT was grouped in the “ grade reading level” and the “ grade level” for math (Tr. 964, 969-70; see also Tr. 1010-12).[17] Ms. s‟ informal assessments in September 2010 yielded a reading comprehension estimated level of “about grade” and at the time of her testimony, STUDENT was “at about a grade reading level, for comprehension, when he is in an ideal setting” (Tr. 1023-24). This suggests that with respect to academic levels in reading and math, STUDENT
16 Mr. testified that one student in his September 2010 to June 2011 class was “closer to reading and -grade math. I give him much more challenging work” (Tr. 697-98, 717-18, 722).
would have been within the upper range of academic functioning with respect to the students in Mr. s class at .[18]
PARENTS‟ contend that STUDENT would have been overwhelmed by the large number of students at the proposed placement which shares a building with two additional schools (Tr. 1541; PARENTS Ex. A-4). Ms. testified that students in the program do not typically share hallways, stairwells or other school spaces with the students in the two other programs housed in the building (Tr. 179-80), except for a small area in the cafeteria which is highly supervised and segregates students in the recommended placement from the general education students (Tr. 18182, 213-14). I find that PARENTS‟ concern regarding STUDENT‟s exposure to “ ” is not supported by the evidence (Tr. 1541).
Next, I consider PARENTS‟ assertion that the recommended placement at at would have provided STUDENT with just one academic period of instruction daily which would be insufficient to ensure that STUDENT would make academic progress and avoid regression (IHO Ex. III at p. 16). Had STUDENT attended the proposed placement, he would have attended one forty-eight minute academic period per day (Tr. 711-12). This ELA class would incorporate math instruction through word problems, thereby condensing ELA and math instruction into 48 minutes (Tr. 723-24). DOE relies on Ms. ‟s opinion that the recommended placement offered a FAPE (Tr. 49); however, her conclusory testimony has little credibility since she acknowledge that she had never met or observed STUDENT nor had she identified the need to collect updated data to ascertain STUDENT‟s current level of academic functioning (Tr. 82). I am mindful that the Second Circuit has instructed that a “„school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.‟” Cerra, supra quoting Walczak. STUDENT possesses significant relative strength in the area of academics with skills in the grade range according to his classroom teacher (Tr. 964, 969-70) and average decoding/reading, spelling, listening comprehension and numerical operations skills as reported in Dr. ‟s 2008 Psychological Evaluation (DOE Ex. 6-6 & 6-11). The DOE did not elicit credible testimony or produce documentary evidence demonstrating that just one period of 11 IEP was developed, and therefore, this data was not available to the CSE during the IEP Annual Review on March 10, 2010 and is inconsistent with STUDENT‟s functioning as reported by his classroom teacher, Ms. who spent the most time with STUDENT (Tr. 696-97, 1023-24; PARENTS Ex. P; see also DOE Exs. 6-4 & 9-3).
academic instruction would have been sufficient to support STUDENT‟s academic progress, especially given STUDENT‟s well-documented distractibility in a group setting (Tr. 758-59, 834, 844-46, 875, 895). Providing STUDENT with merely one 48 minutes academic session flouts Congress‟ findings that research demonstrates that the education of students with disabilities can “be made more effective by [] having high expectations” for such students and “ensuring their access to the general education curriculum.” 20 U.S.C. §1400[c][5][A]. I find DOE has not met its burden of demonstrating that its recommended placement would provide sufficient academic instruction to promote STUDENT‟s academic progress and avoid regression in academic skills.
STUDENT‟s IEP provides for ten weekly sessions of related services all to be provided in a “Separate Location” (DOE Ex. 9-15). PARENTS contend that DOE would have been unable to deliver all of STUDENT‟s IEP mandated related services (ten sessions per week)[19] within the context of the school day20 and that STUDENT would have regressed as a result of receiving related services in lieu of academic instruction (IHO Ex. III at p. 18-19).
Mr. testified that the students at the recommended placement generally receive related services during daily ELA and gym period (Tr. 677-78); however, he also testified that some students receive push-in related services at the worksite or at lunch (Tr. 680). The DOE asserts that STUDENT “would have received his related services, mostly on a push-in model” (IHO Ex. II at p. 9) – this claim is perplexing because it flouts the IEP specification that STUDENT receive all of his related services in a “Separate Location” (DOE Ex. 9-15). Moreover, there was ample testimony from PRIVATE SCHOOL staff documenting that due to STUDENT‟s high level of distractibility and perseverative speech, certain related services must be delivered on a 1:1 basis in a separate location. Mr. , STUDENT‟s physical therapist, testified that STUDENT is “very distractible and I need a quiet room so I can work one on one with his aide [present]” (Tr. 758-59). Ms. , STUDENT‟s therapist, testified that “[b]ecause of his and because we thought it was best for him to work in a one on one setting where there was ” (Tr. 800). DOE witnesses provided conflicting testimony regarding whether STUDENT would have received related services in a separate location as per the IEP or on a push-in basis at the school site and/or the worksite. With STUDENT‟s IEP in-hand (Tr. 156), Ms. testified that would provide STUDENT‟s related services on a “push in” basis during the school day.[21] Mr. testified that services would be provided outside of the classroom (separate location) if so indicated on the IEP (Tr. 1105-06; see DOE Ex. 9-15). supervisor for DOE District , testified that there is a preference for providing services at the school site and that services would be provided as written on the IEP, even if it provided for four 45 minute sessions (Tr. 1279-80; DOE Ex. 9-15). Ms. captured the essence of the disparate and conflicting testimony:
And I have to say that when I saw [ten 45-minute sessions of related services] I highlighted it and I said ten. . . . but I would say to you that once [STUDENT‟s] parents came in to meet with us, and prior to the IEP meeting, and during the intake, we would address that because that‟s a lot of sessions to be dependent on related services. And I‟m not saying that we would absolutely drop them. We can‟t. . . . But at that point, we would try to have teachers push into the classrooms in the morning and push into the classrooms in the afternoon so that, hopefully, we could get all of those services in (Tr. 202-03).
Realizing that STUDENT‟s extensive IEP related services were incompatible with the framework of the program at , Ms. belatedly suggested that STUDENT‟s worksite attendance could be scaled back to accommodate STUDENT‟s the mandated services (Tr. 227-28). The cumulative DOE testimony creates a disjointed portrait of employees struggling to retrospectively conceive of a strategy to cram STUDENT‟s mandated ten weekly related services into a school schedule and program that was not designed to accommodate the provision ten weekly related services in a “separate location.” The testimony confirms that only way to deliver the related services in a “separate location” as per the IEP would be to remove STUDENT from his only academic period on a daily basis (Tr. 680-81). Removal from the sole academic period each day would certainly cause STUDENT to regress in his academic skills and, therefore, deprive him of a FAPE. It is important to be mindful of the Second Circuit‟s cautioning remarks, albeit in dicta: “We emphasize that we are not holding that school districts have carte blanche to assign a child to a school that cannot satisfy the IEP's requirements.” T.Y. ex rel. T.Y v. New York City Dep‟t of Educ., 584 F.3d 412, 53 IDELR 69 [2d Cir. 2009] (failure to identify a specific school on an IEP is not a per se IDEA procedural violation). The evidence is patently clear that was not equipped to implement STUDENT‟s IEP as written; rather, school staff would have needed to take steps to modify the IEP by scaling back related services to such an extent that the nature of the recommended program and services would be materially different than the IEP that was developed by the CSE at the March 10, 2010 IEP Annual Review. Following the reasoning of court in R.K., supra, the Prong I analysis focuses on the adequacy of the program “actually offered” to STUDENT. I find that he program “actually offered” to STUDENT could not be implemented at the recommended placement; this constitutes a substantive violation of a FAPE.
PARENTS assert that the DOE did not have sufficient providers available to deliver STUDENT‟s IEP mandated occupational therapy and physical therapy (Tr. 169-70; PARENTS Ex. E; IHO Ex. III at p. 18-19). PARENTS rely on the Special Education Services Delivery Reports documenting that students were awaiting services as of May 28 and December 18, 2010 as evidence that the DOE was unequipped to deliver STUDENT‟s recommended related services (Tr. 211, 1537; PARENTS Exs. M & N). A review of the DOE witnesses‟ testimony on this issue provides a hazy picture at best. Ms. , Supervisor of Physical Therapy for District , testified that there were two licensed physical therapists at during the 2010-11 school year (Tr. 1084-85). Ms. testified that by the end of October or the beginning of November 2010, “kids should‟ve been served and they were served. We do have all of the kids at the main site are served, at the Houston Street site, where [STUDENT] was offered placement” (Tr. 199); however, prior to November 2010, some students were unserved (Tr. 200). While Ms. testified that the Special Education Service Delivery Reports from May and December 2010 were accurate as of those times, she echoed Ms. ‟s testimony and stated that it is possible that the students listed as unserved on these reports were receiving RSA‟s “but billing hasn‟t gotten sent through or it could mean that the parent‟s [sic] haven‟t been able to find the provider” (Tr. 1085-86; PARENTS Exs. M & N). , Supervising in District 75 responsible for the supervision of at , testified that if the Special Education Service Delivery Report from December 2010 lists students as awaiting services, it does not necessarily follow that students are not being serviced by providers at the school (Tr. 1097-98, Tr. 1103-04; PARENTS Exs. M
& N). He explained that while it was “possible” that that as of the date of the Special Education Service Delivery Report dated May 28, 2010 that 25 students were awaiting services and that as of December 18, 2010, 10 students were awaiting services (Tr. 1103; Exs. M & N),
. . . [o]ne of the problems is that the data is sometimes not accurate. . . . what it‟s saying is that the file number, an employee number, has not been assigned to that student. That can sometimes be a clerical error. It could also be that the service isn‟t provided. It could be, when we hire new employees, there are glitches in the data. So I can‟t verify the exact reason why that would occur.
I can only tell you when I go in, you have to remember that we have 20,000 students, about 11,000 or 12,000 are getting . And when I go into it, some aren‟t receiving and then sometimes a certain percentage turn out to be system errors that have to be solved one at a time (Tr. 1104).
While the data in the Special Education Delivery Reports for could raise reasonable concerns that the program would not be equipped to serve all of its students during the 2010-11 school year, I find that the documents do not establish that STUDENT would not have received IEP mandated therapy,[22] and I do not rely on these reports for my finding that STUDENT would not have received all of the IEP mandated related services at .
PARENTS contend that they were informed that STUDENT would not have been eligible to participate in a worksite program at the IEP placement at , and as a result, STUDENT would have regressed. STUDENT‟s father‟s memory on this issue was somewhat shaky. When asked, “Do you recall who told you that [STUDENT] would not qualify for outside job placement?” STUDENT‟s father replied “I think it was Mr. , because this was one of the questions, but, you know, Mr. White – I think it was Mr. I want to clarify this point, yes” (Tr. 1542-43). While Mr. , School Unit Coordinator, testified that “[w]e have placed students in work site programs who are new to our school in the past” (Tr. 1312; IHO Ex. 11 at p. 11), he further testified that he gives “a lot of tours” and he did not recall “the content” of his conversation with STUDENT‟s father (Tr. 1315). Given STUDENT‟s father‟s and Mr. ‟s hazy recollection of this conversation, I do not afford it much weight.
Ms. Principal at , testified that a student‟s and experience at another school or agency are in determining a prospective student‟s class placement in a worksite (Tr. 162-63, 168). Mr. testified that while students who are new to the program at generally start in an and transition to a worksite placement, he emphasized that this sequence “isn‟t set in stone” and the “school does not have a set pattern [or] . . . there isn‟t a set criteria the student must meet in order to go to the community work sites . . .” (Tr. 612-13). Mr. further testified, “I believe one of my students this year [July 2011] was new” and was placed in a worksite (Tr. 628-29, 632). Ms. echoed this testimony: “. . . we had a few kids come to us this year under my supervision also, who had come to us at an older age, who had worksite ability already. Those are the kids that I would try to place, and we did place them, into another worksite” (Tr. 167). Mr. ‟s and Ms. ‟s testimony lends some support the school‟s policy and practice with respect to placing students new to the program directly into a worksite placement provided that they have prior worksite experience, as did STUDENT (Tr. 628-29). I find that the weight of the evidence demonstrates that STUDENT would have had the opportunity to continue with in an off-campus worksite placement had he enrolled in the 2010-11 IEP placement at .
Appropriate worksite opportunities were available both in the summer 2010 and September 2010 through June 2011 programs at . Ms. testified that “we have [] approximately
23 worksites across the board that we place students at” (Tr. 163). In the summer 2010, students in Mr. ‟s class participated in worksite programs at , the Department for (Tr. 308-09, 66364, 686-87). One paraprofessional staffed each worksite, and Mr. traveled to each worksite to supervise all three worksites and worked with the students as well (Tr. 312, 690). Had STUDENT attended the program, STUDENT‟s would have accompanied him to the worksite (Tr. 312-13). From September 2010 through June 2011, students in Mr. ‟ class participated in worksite programs at: ( ) (Tr. 655); ( ) (Tr. 660-61); and ( ) (Tr. 310-12, 652-53, 662). Mr. divided the students in his class into three fluid groups with the objective that each student would “ultimately . . . have experience all each site” (Tr. 652-54). Each worksite was staff by an adult: Mr. , the classroom aide or a aide who was assigned for half of school day to one student in the class and half the day to another student (Tr. 659-60).
PARENTS assert that the recommended placement at was not appropriate because it “does not require an accredited work coach to accompany students to worksites” (PARENTS Ex. A-3; E-1). While the record clearly establishes that STUDENT‟s necessitate the support of a full-time (DOE Ex. 9-16), the record does not adequately support that STUDENT required the additional support of a ” or “ ” at the worksite. PARENTS offered into evidence a document comprised of a cover sheet on PRIVATE SCHOOL letterhead listing of teachers and providers with their area of service list alongside their name and certificates for each provider listed (PARENTS Ex. W-1). I note that none of the providers listed hold a certification as a “job coach” (PARENTS Ex. W). The credentials and job description of a “job coach” are nebulous (Tr. 1489-92). In fact, PRIVATE SCHOOL lists Ms. as a “Job Coach”, yet the supporting documentation does not indicate any particular training in this area (PARENTS Ex. W-1, W-7). Ms. testified that in addition to New York State special education classroom teacher certification, she has a BA in psychology, a Masters in Behavioral Disorders (Tr. 1136). At the hearing, STUDENT‟s father explained that he may have “misused” the term “accredited job coach” and that he was referencing a person with “knowledge and experience in job coaching” and whose “qualifications and experience” would be higher than a paraprofessional (Tr. 1544).
Mr. , PRIVATE SCHOOL , testified that STUDENT went to the worksite with the support of both an aide and a job coach (Tr. 1487, 1494). Ms. testified that STUDENT needed worksite support from someone with educational and behavioral expertise (Tr. 1135-36, 1163; PARENTS Ex. W). Nevertheless, I am hard-pressed to find that STUDENT requires the support of an additional adult beyond the , particularly where the qualifications of that additional adult are not well-defined. Ms. testified that she faded her presence as she taught STUDENT new tasks presented to him at the worksite; at these times, Ms. would provide “back-up support” to STUDENT‟s (Tr. 1153-54, 1162) At times, Ms. faded her support and attended STUDENT‟s worksite less frequently, but when behaviors increased, she resumed her regular attendance with STUDENT at the worksite (Tr. 1196-97). While STUDENT may have benefitted from the individual support of an additional adult with a Master‟s in Behavior Disorders, namely Ms. , accompanying him to the worksite, I find PARENTS‟ contention that STUDENT needs a student-to-staff ratio at the worksite to be without merit. The DOE is not required to provide services to “maximize” STUDENT‟s potential; rather, the DOE must provide a program that “is likely to produce progress, not regression.” Cerra, supra; M.H. supra. As a result of (1) inappropriate IEP goals and short-term objectives; (2) an inadequate ; (3) inadequate intensity of academic instruction provided at the recommended placement; and (4) IEP related services that could not be provided in the context of the recommended placement, I find that the DOE failed to satisfy its burden under Prong I of the Burlington/Carter analysis and denied STUDENT a FAPE on substantive grounds.
C. Prong II: Appropriateness of PARENTS’ Unilateral Placement
With regard to Prong II of the “Burlington/Carter” analysis, the Second Circuit explained that “[n]o one factor is necessarily dispositive in determining whether parents‟ unilateral placement is „reasonably calculated to enable the child to receive educational benefits.‟” Frank
G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] quoting Rowley, 458 U.S. at 207; see also Weaver v. Millbrook Cent. Sch. Dist., 111 LRP 59361, 09 CV 692 (KMK) [S.D.N.Y. 2011]. The court provided the following guidance:
. . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (emphasis added) Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.
2007] quoting Frank G., supra.
The Second Circuit explained that “a child‟s progress is relevant to the court‟s review. But such progress does not itself demonstrate that a private placement was appropriate.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105; see Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] Moreover, “„Grades, test scores, and regular advancement . . . constitute evidence that a child is receiving educational benefit,‟ but courts may also consider whether „the totality of the circumstances [demonstrates that the] . . . placement reasonably serves a child's individual needs.‟” Schreiber v. E. Ramapo Cent. Sch. Dist., 54 IDELR 161, 110 LRP 19542 [S.D.N.Y. 2010] quoting Frank G., 459 F.3d at 364. Accordingly, “lack of progress itself does not mean that the parents‟ placement was inappropriate.” Weaver, supra citing P.K. ex rel. S.K. v. N.Y.C. Dep‟t of Educ., No. 09 CV 1472, 57 IDELR 105, 111 LRP 54995 at fn.12 [E.D.N.Y. 2011] (“Although a court should not consider retrospective evidence of progress when determining whether the school district's IEP is adequate on prong one, „[a] student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate.‟” P.K. quoting Stevens ex rel. E.L. v. New York City Dep't of Educ., 108 LRP 2761 [S.D.N.Y. 2010] citing Gagliardo, 489 F.3d at 115).
New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber, supra quoting C.B v. N.Y. City Dep't of Educ., 2005 WL 1388964 [E.D.N.Y 2005]. “The parents‟ unilateral placement need not have certified special education teachers or an IEP for the disabled student in order to qualify as appropriate.” Gabel v. Bd. of Ed. of the Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313 [S.D.N.Y. 2005] citing Carter, 510 U.S. at 14 In addition, parents “may not be subject to the same mainstreaming requirements as a school board.” Frank G. quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that “the test for the parents' private placement is that it is appropriate, and not that it is perfect”), and a parent‟s unilateral placement does not need to be on an approved list of private schools. Carter, supra.
As noted above, PARENTS have the burden of demonstrating that the educational and related services provided by PRIVATE SCHOOL were appropriate to meet STUDENT‟s needs. It is well-established that parents seeking reimbursement for a unilateral private placement are held to a less rigorous definition of FAPE. Frank G., supra. In the instant matter, the evidence establishes that PRIVATE SCHOOL provides STUDENT with “‘educational instruction specially designed to meet [STUDENT‟s] unique needs . . . supported by such services as are necessary to permit the [STUDENT] to benefit from instruction.‟” Frank G., supra, quoting Rowley, 458 U.S. at 188-89.
STUDENT‟s PRIVATE SCHOOL schedule provides him with a full range of appropriate special education programs, supports and related services to meet his unique needs: functional reading; Occupational Math; writing; daily Social Skills instruction (focusing on appropriate conversational skills); Instructional Breakfast (focusing on appropriate socialization, table manners, clean-up in the cafeteria setting); Personal Time Management/Organizational Skills (organizing their desk, papers and school supplies); Life Skills Science (addressing healthy life style, appropriate clothing for the weather, cooking and kitchen safety, and safety in the community); Physical Education; Occupational Preparation/Job Readiness Skills (preparation for vocational experiences); Computer Lab; Travel Training & Community Exploration23 (life skills related to the community); Music;24 Career Prep (STUDENT attends vocational site); Cultural Arts/Elective (student select activity such as photography and music); related services of paraprofessional (Tr. 960-1074; PARENTS Ex. K). All PRIVATE SCHOOL staff are appropriately credentialed (PARENTS Ex. W). Janis Wolfson, PRIVATE SCHOOL building coordinator has 39 years of experience in the field of education, testified that PRIVATE
23 The Travel Training & Community Exploration class ran through February 2011, and then the class changed to Music (Tr. 981; PARENTS Ex. K).
Music class began in February 2011 (Tr. 981).
SCHOOL provides professional development to its staff in a variety of areas including instructional strategies and writing lesson plans (Tr. 1231-32, 1234, 1246).
STUDENT‟s 2010-11 classroom teacher, Ms. earned a Master‟s Degree in special education and literacy in 2010, and she is certified by New York State in special education (Tr. 954-55). STUDENT is in the classroom in the morning with Ms. , the teaching assistant, and four paraprofessionals, one of whom is assigned to STUDENT (Tr. 963-64). The class is divided into two groups of six and functions as a , so that at there are six students in the classroom while the other six students are “out at services or in vocational placements” (Tr. 660-61, 1238). The DOE relies on a State Review Officer (“SRO”) decision25 to support its contention that that STUDENT‟s placement at PRIVATE SCHOOL is functionally a student-to-teacher ratio and is therefore overly restrictive (Appeal No. 08-130; IHO Ex. II). DOE‟s position is unpersuasive, since the DOE argued vigorously that its recommended placement for the summer 2010 was appropriate with just eight students in the class (Tr. 596). Moreover, as mentioned above, New York courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber supra; see also Frank G. and M.S. supra. In this context, I find that PRIVATE SCHOOL‟s method of implementing its 12:1 model by dividing STUDENT‟s class in half for purposes of academic instruction does not render the program overly restrictive.
STUDENT is appropriately grouped in Ms. ‟s class with students ranging in age from (Tr. 955-56). STUDENT received thirteen hours of academic instruction a week (Tr. 1032). Ms. teaches STUDENT ELA (in the form of Occupational English, Workplace Literacy/Functional Reading, Occupational English and Basic Letter Writing) three or four days per week26 (Tr. 96869; PARENTS Ex. K). Ms. groups students by reading level and math level; STUDENT is grouped in the grade level for both functional reading and math (Tr. 964-69; PARENTS Ex. K), so STUDENT receives academic instruction at his level of functioning (Tr. 970). Ms teaches writing mostly on an individual basis, and when STUDENT misses academic instruction for pull-out related services, Ms. will work with STUDENT individually if STUDENT missed a new lesson (Tr. 972-73).
25
I also note that SRO decisions can be persuasive, but they are not binding precedent. See 8 NYCRR § 279.12 (the decision of the State Review Officer “shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever.”); see also A.H. v. NYC DOE, 652 F. Supp. 2d 297 at fn 12 [E.D.N.Y. 2009].
26 I note that Ms. testified that she teaches STUDENT reading three days per week, but the STUDENT‟s schedule reflects that he has reading instruction four days per week (Tr. 968-69; PARENTS Ex. K).
STUDENT‟s PRIVATE SCHOOL report cards indicate that STUDENT was reading at a grade level in December 2010 and March 2011, yet STUDENT‟s 2010-11 final report card narrative suggests that STUDENT‟s reading level dipped slightly to the grade level and on June 17, 2011 (Tr. 1024-27; PARENTS Ex. AA-2, BB-4 & AAA-2). Ms. testified that STUDENT made progress in reading comprehension and functional math, specifically with regard to money skills (Tr. 1024). Ms. explained that STUDENT‟s Progress Reports reflect fluctuation in STUDENT‟s reading level, because they capture estimates at moment in time and the reports do not reflect averages (Tr. 1069). Due to STUDENT‟s documented variability in academic performance (DOE Ex. 9-3), STUDENT‟s dip in reading skills on the date of the progress report does not detract from the appropriateness of the intensive reading instruction targeted at STUDENT‟s functional reading level.
At PRIVATE SCHOOL, STUDENT received appropriate supports and interventions to address his unique needs and demonstrated some behavioral progress. Ms. testified that she is the school psychologist at PRIVATE SCHOOL; she earned her Master‟s in School Psychology and holds a professional license as a school psychologist (Tr. 866). Beginning in September 2010, Ms. worked with STUDENT in a group setting during daily instructional breakfast to address , and following directives; beginning in December 2010, counseling twice a week on an individual basis was added to STUDENT‟s schedule primarily to address of one staff member (Tr. 887-88, 913; PARENTS Ex. K). In addition, she works with the classroom teacher, Ms. , to provide strategies to address in the class (Tr. 890, 914). Ms. developed a targeting STUDENT‟s , including and (Tr. 852, 874-75, 896). The behavior plan identified music as a positive reinforcer and rewarded STUDENT with one song on his iPod for every ten minutes STUDENT displayed ; the timer was stopped when STUDENT displayed an and it was resumed once STUDENT composed himself (Tr. 852, 873, 891, 921). Ms. testified that STUDENT made progress towards his goals of “initiating social interaction with adults and peers, using , standing an appropriate while contact . . . to address such as . . . [and] maintaining an on topic conversation” (Tr. 893).
Ms. , STUDENT‟s , testified that she has been employed by PRIVATE SCHOOL for almost ten years and she holds a Master‟s Degree in (Tr. 797-98). During the 2010-11 school year, Ms. worked with STUDENT twice a week for forty-five minutes per session, and STUDENT‟s paraprofessional accompanied student to the sessions (Tr. 799-800). Due to STUDENT‟s perseverative phases and attentional issues, Ms. typically worked with STUDENT in a setting with “ ” (Tr. 800, 833-34). focused on handwriting, overall muscle tone and upper body strengthening, functional internet skills, data entry, typing exercises, attention to task, (“ ”) (such as efficient hand washing, “Purelling”, buttoning, handing shirts and pants and folding) (Tr. 801-04). Ms. reported that STUDENT made “some progress in terms of handwriting,” but his performance was inconsistent due to (Tr. 804). Ms. explained that she reviewed annual goals and short-term objectives attached to Progress Report from the prior school year, 2009-10, and worked with STUDENT towards an extension of those goals (Tr. 819-21; DOE Ex. 3-3). Ms. reported STUDENT‟s “slight improvement” with respect to typing with both hands and some improvement with respect to the other short-term objectives, but at times, and interfere with performance (Tr. 821-25, 827-31; DOE Ex. 3-3). I find that the services were designed to meet STUDENT‟s unique needs.
, testified that she holds a Master‟s in Pathology and a teacher‟s certificate in speech language pathology (Tr. 839). Ms. provided STUDENT with therapy twice a week for forty minute sessions; in addition, from September 2010 through February 2011, Ms. pushed into the class once a week as part of a consultative model (Tr. 841-44). Ms. noted that it is “very difficult” for STUDENT to learn in a group setting, since he and engages in (i.e. “ ”; “ ”; and “ ”) and (Tr. 844-45). The paraprofessional must be present sessions to address STUDENT‟s tendency to grab at Ms. “in ” (Tr. 845, 866, 870-71). Ms. reported some progress in the area of skills (Tr. 849-53, 860; DOE Ex. 9-9). She testified that she observed STUDENT‟s progress in skills (Tr. 857-59, 861; DOE Ex. 9-9) and skills, although he continues to require cuing to answer “ (Tr. 862-63; DOE 9-10). The evidence supports that Ms. provided services designed to meet his individual needs.
At PRIVATE SCHOOL, STUDENT received physical therapy from Mr. a licensed physical therapist in New York State (Tr. 748-49). During the 2010-11 school year, Mr. provided STUDENT with one 60 minute session and one 30 minute session per week to address STUDENT‟s poor balance (Tr. 750-51). Mr. provided credible testimony and demonstrated familiarity with STUDENT‟s areas of weakness; Mr. has been working with STUDENT for three to four years (Tr. 772). Mr. reported that STUDENT “is focusing more and in terms of tasks . . . Now he‟s trying to (Tr. 752). sessions are provided in a quiet area, such as the multipurpose room when it is not being used for other activities or the therapy room (Tr. 751, 758). Mr. testified that STUDENT‟s attends the sessions to provide reinforcement (Tr. 768). While STUDENT made variable and limited progress in , the analysis of the appropriateness of the PRIVATE SCHOOL program hinges on whether STUDENT received services designed to meet his unique needs (Tr. 760; see also Tr. 752; DOE Ex. 4-1). I find that the physical therapy services met STUDENT‟s individual needs.
Mr. STUDENT‟s vocational coordinator at PRIVATE SCHOOL from February 2008 through February 13, 2011 (Tr. 1487-90), testified that he “assessed [] [STUDENT‟s] strengths and relative weaknesses in regard to vocational placements, and also, worked with his related service personnel and with the classroom teachers, to [] ensure the maximum success for him at these jobsites” (Tr. 1490). Mr. explained that a job coach assesses the worksite prior to the student enters to identify potential , , the tasks to complete at the site, opportunity for growth (Tr. 1493-94). During the 2010-11 school year, STUDENT was placed at a retail store as well as a local food pantry (Tr. 1141, 1145, 1149, 1507). STUDENT went to the work site four times per week for forty-five minutes to an hour and a half accompanied by his “job coach”, Ms. . Ms. has a Master‟s Degree in Behavioral Disorders (Tr. 1136, 1144). At the work sites, STUDENT had ample supervision by his paraprofessional and Ms. (Tr. 1151, 1161). STUDENT engaged in appropriate vocational tasks such as sorting and categorizing garments or food, hanging clothing properly and shelving items (Tr. 1148-54). One of the goals of the worksite program was for STUDENT to with co-workers (Tr, 1150). Ms. redirected STUDENT and provided prompts when STUDENT displayed (i.e. and ) at the worksite (Tr. 1155-57). Ms. also adapted and modified the to meet STUDENT‟s needs in the worksite settings (Tr. 1157, 1187-88). When STUDENT‟s became , outside of the worksite space (Tr. 1161). With the support of a aide and a job coach, STUDENT was not removed from the worksite for his (Tr. 1510). The goal, however, was to fade staff support so that STUDENT could function in the “least restrictive environment” (Tr. 1161-62, 1196-97, 11991201).
At the worksites, STUDENT made progress in his level of accuracy and his rate as demonstrated Ms. ‟s data collection results; STUDENT demonstrated progress in attention and ability to work independently and showed a decrease in inappropriate vocalizations (Tr. 1157-60, 1224-25; PARENTS Ex. AA, BB). Travel training and safety were addressed on the bus ride to one worksite (Tr. 1220-21). Overall, PRIVATE SCHOOL‟s vocational program effectively addressed STUDENT‟s vocational needs in worksite setting (Tr. 1224-26).
I reject DOE‟s contention that PRIVATE SCHOOL is too restrictive. Cognizant that IDEA‟s least restrictive environment mandate is not rigidly applied to a parent‟s private placement (see supra Frank G.), I note that STUDENT was exposed to and interacted with nondisabled members of the community at the worksites at store (Tr. 1144, 1146) and the (Tr. 1149, 1507). These opportunities are sufficient to provide STUDENT with opportunities to interact with members of the broader community on a regular basis. Therefore, PRIVATE SCHOOL is not overly restrictive.
I find that PRIVATE SCHOOL provided STUDENT with a wide range of special education, behavioral, vocational supports and services designed to meet STUDENT‟s individual needs. Accordingly, PARENTS satisfy Prong II of the Burlington/Carter analysis.
D. Prong III: Equitable Considerations
Prong III of the “Burlington/Carter” criteria focuses on equitable considerations. Tuition reimbursement can be reduced or denied if at the last CSE meeting or ten business days prior to the removal of the child from the public school, the parents did not give written notice the school district that they were rejecting the recommended placement proposed by the CSE and stating their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. §1412[a][10][C][iii]. In addition to the ten-day notice requirement, the equities analysis examines parents‟ cooperation with the school district and parents‟ genuine intention to consider the school district‟s recommended placement. R.B. and H.Z v. N.Y. City Dep‟t of Educ., 54 IDELR 223, 110 LRP 28652 [S.D.N.Y. 2010] citing S. W. ex rel. M.W. v. N.Y. City Dep't of Educ., 646 F. Supp. 2d 346, 364 [S.D.N.Y. 2009] (finding the equities weighed against reimbursement where parent signed an enrollment contract with a private school agreeing to reject the public school placement two months before even visiting the proposed public school); Bettinger v. N.Y. City Bd. of Educ., 49 IDELR 39, 107 LRP 67735 [S.D.N.Y. 2007] (denying reimbursement on equitable grounds where parents refused to visit the two schools proposed by the district); Carmel Cent. Sch. Dist. v. V.P. ex rel. G.P., 373 F. Supp. 2d 402, 416 [S.D.N.Y. 2005] (finding parents were not equitably entitled to tuition reimbursement where they “never had the slightest intention of allowing the child to be educated in the public school, and did everything possible so that they could frustrate a timely review of [the child's] condition” before enrolling the child in private school); see also R.K. ex rel. R.K. v. New York Dep‟t of Educ., 09CV-4478, 111 LRP 22787 [E.D.N.Y. 2011] (finding that the equities favored parents where parents had a history of working with the school district, communicated their concerns regarding the recommended program to the school district, shared private evaluations with the school district, visited the proposed placement and subsequently objected to such placement). “Courts fashioning discretionary equitable relief under 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 education was unreasonable.” Carter, 510 U.S. at 16.
The evidence establishes that PARENTS cooperated with the CSE and acted reasonably and in good faith by attending and actively participating in CSE meetings and promptly visiting the proposed placement at and following up with the School Unit Coordinator to address concerns regarding the recommended placement (Tr. 1534-36, 1573-77, 1580-81; PARENTS Ex. A-3, E-1; DOE Ex. 9-2). PARENTS communicated their concerns about the proposed placement to the CSE in a detailed letter dated July 2, 2010 and provided ample notice of their intent to enroll STUDENT at PRIVATE SCHOOL for the 2010-11 school year at public expense [27] (PARENTS Ex. E). STUDENT‟s father‟s provided credible testimony that he was willing to place STUDENT in an appropriate CSE recommended placement (Tr. 1556-57; see R.K., supra) – the testimony was bolstered by evidence that STUDENT attended DOE placements in his educational history (Tr. 1513-15):
I would happily place [STUDENT] in a public education offering of the Department of Education, if it is appropriate for him. And the reason that I say so is that not only this impartial hearing, but the whole process of coming up with funding for a private school, we are talking about
$100,000.00 or thereabout, per year here. Arranging everything that has to do with a private school attendance is bearing on me, and it the Department of Education offers something that works for [STUDENT]
that is appropriate for him, I would happily place him in such a program, and I have maintained this position for years (Tr. 1556-57).
While the Special Education Services Delivery Report dated May 28, 2010 suggesting that some students at were not receiving occupational therapy and physical therapy is not dispositive of whether STUDENT would or would not have received those related services (see supra “Substantive Requirements” section), PARENTS‟ reliance on Special Education Services Delivery Report in rejecting the proposed 2010-11 IEP placement at was well-intentioned and does not impact the balancing of the equities (PARENTS Ex. M). Likewise, I find that PARENTS‟ assertion that their decision not to enroll STUDENT in the recommended program was premised on information provided by the prospective placement suggesting that STUDENT would not be eligible to attend a worksite placement during the 2010-11 school year was based on a good faith and genuine belief that STUDENT would not have access to worksite experience and does not impact the weighing of the equities.
While I endorse DOE‟s position that “[d]isliking the racial composition of a placement is not a valid reason to reject it” (IHO Ex. II at p. 19), the evidence does not support DOE‟s contention that PARENTS never intended to enroll STUDENT in a DOE placement due to concern about the racial composition of the proposed school (IHO Ex. II at pp. 18-19). I give little weight to Ms. ‟s “double hearsay” testimony that her colleague, Ms. , told her that STUDENT‟s mother expressed concerns about STUDENT‟s placement in a school with a “largely population” (Tr. 39-42). DOE relies on innuendo embedded PARENTS‟ attorney‟s cross-examination questions (IHO Ex. II at pp. 18-19); however, the questions themselves do not constitute evidence of PARENTS‟ motive. Instead, I credit STUDENT‟s father‟s in-person testimony that STUDENT‟s school experiences have included students from “a variety of racial backgrounds” and STUDENT has attended sleepaway camp with “campers of mixed racial backgrounds of all sorts”; he further testified that STUDENT did not have issues in the past when placed with a population (Tr. 1529-30). I find that the racial composition of the recommended placement was not the motivating factor for PARENTS‟ rejection of the placement.
PARENTS request PRIVATE SCHOOL tuition reimbursement and reimbursement for related services for the 2010-11 school year. I note that PARENTS‟ Amended Request seeks reimbursement of PRIVATE SCHOOL tuition and related services for the 2010-11 school year “all on a twelve month basis”, yet PARENT‟s attorney asserted at the hearing that “[t]he child did not attend [PRIVATE SCHOOL] for the summer. We‟re not seeking funding for the summer. The child went to a special needs camp . . .” (Tr. 345; PARENTS Ex. A-5). Accordingly, consideration of tuition and related services reimbursement is limited to September 2010 through June 2011.
PARENTS dutifully explored the appropriateness of the CSE recommended program and placement before they contractually bound themselves to pay full tuition and related services costs to PRIVATE SCHOOL. STUDENT‟s father signed PRIVATE SCHOOL 2010-11 Enrollment Application and accompanying agreement on September 12, 2010 and Related Services Agreement on April 29, 2011 (Tr. 1551; PARENTS Exs. U, X & Y). While the agreement obligates PARENT to tuition payments and other fees in the amount of $49,610.00 (PARENTS Ex. X), STUDENT‟s father testified that STUDENT actually enrolled in the program and is obligated to pay tuition and fees for that program in the amount of $54,050 (Tr. 1265, 1551-53; PARENTS Ex. X). STUDENT‟s father testified that $50,485 had been paid, leaving PARENTS with tuition balance due of $3,565 (Tr. 1560, 1583-85; PARENTS Exs. L & Y). On April 29, 2011, PARENTS executed a Related Services Agreement, and as per the agreement, PARENTS made three credit card payments 28 to PRIVATE SCHOOL totaling $46,823.5029 for the costs of related services delivered to STUDENT for the 2010-11 school year (Tr. 1553-55, 1586-87; PARENTS Exs. U-1 – U-2, JJ). STUDENT attended the PRIVATE SCHOOL for the 2010-11 school year (PARENTS Ex. Z), and the record adequately documents
28 PARENTS‟ American Express statement dated May 27, 2100 reflects May 18, 2011 payment of $15,600 to PRIVATE SCHOOL (PARENTS Ex. JJ-1 & JJ-2), and PARENTS‟ American Express statement dated June 2, 2011 reflects payments of $15,600 and $15,623.50 on June 6 and June 20, 2011 respectively (PARENTS Ex. JJ-3 & JJ-4).
29 Closing Brief for the DOE cites the total cost listed on the Related Services Agreement for the 2009-10 school year (PARENTS Ex. WW-1) rather than the cost listed on the Related Services Agreement for the 2010-11 school year at issue (IHO Ex. II at p. 19; PARENTS Ex. U-1).
PARENTS‟ payment of the contracted tuition and related service expenses, with the exception of the $3,565.00 remaining tuition balance.
While PRIVATE SCHOOL closes at 1:30 p.m. on Fridays, the school schedule has an extended school day, 8:00 a.m. to 4:00 p.m., from Monday through Thursday (PARENTS Ex. K). Thus, PRIVATE SCHOOL‟s hours of operation per week are longer than the hours of operation for the DOE recommended placement which runs from 8:00 a.m. to 2:48 p.m. Monday through Friday (Tr. 666, 670-71; 683). I see no reason to reduce the tuition or related services reimbursement to address the early dismissal on Fridays.
For the foregoing reasons, I find that the equities weigh in PARENTS‟ favor.
IV. CONCLUSION
The DOE has failed to meet its burden under Prong I of the Burlington/Carter analysis, and PARENTS have satisfied their burden under PRONG II of the Burlington/Carter analysis. The balancing of the equities favors PARENTS. As a result, PARENTS have established the required elements for obtaining relief under Burlington/Carter analysis and prevail in this proceeding. I find no basis to reduce the amount of reimbursement for 2010-11 PRIVATE SCHOOL tuition and related services costs.
ORDER
Therefore, for all of the above reasons, it is ordered that:
PARENTS‟ request for tuition reimbursement in the amount of $54,050 for placement of STUDENT at PRIVATE SCHOOL for the 2010-11 school year is granted. DOE is ordered to reimburse PARENTS $50,485 for PRIVATE SCHOOL tuition within two weeks of this Order, and the DOE is ordered to reimburse PARENTS for the balance of the tuition in the amount of $3,565 within two weeks of PARENTS‟ submission to the DOE of proof of such payment to PRIVATE SCHOOL.
PARENTS request for reimbursement for related services in the amount of $46,823.50 is granted, and DOE is ordered to reimburse PARENTS this amount within two weeks of this Order. Dated: October 4, 2011 Corrected Date: November 2, 2011 (Correction made to evidence list)
JULIE P. PASSMAN, ESQ.
Impartial Hearing Officer JPP: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 Amended Impartial Hearing Request, 4/21/11, 6 pages B Impartial Hearing Request, 2/15/11, 5 pages C Amended Due Process Response, 3/16/11, 3 pages D Letter from Parent to w/receipt, 6/21/10, 2 pages E Letter from Parent to w/receipt, 7/2/10, 2 pages F IEP, 4/21/09, 17 pages G Description of Program, undated, 1 page H Program Curriculum Syllabus, undated, 10 pages I School Transition Program, undated, 2 pages J Attendance Report, 3/22/11, 1 page K Class Schedule, Sept. 2010, 1 page L Evidence of Tuition Payments, multiple dates, 11 pages M Special Education Service Delivery Report (P.S. M721), 5/28/10, 1 page N Special Education Service Delivery Report (P.S. M 721), 12/18/10 O Final Changes to District Progress Reports for 2010-11, 4/12/11, 2 pages P Evaluation, 11/13/10, 10 pages R NYC DOE Standard Operating Procedures Manual, 2-09, 4 pages S NYS Paraprofessional Qualifications, 5/2007, 2 pages U Related Service Agreement, 4/29/11, 2 pages V Letter to parents, 1020/10, 2 pages W Assigned Faculty and Credentials, 2010/2011, 14 pages X Tuition Contracts, 9/12/2010, 2 pages Y Affidavit of , 3/24/11, 1 page Z Attendance Record, 3/3/11, 1 page AA First Trimester Report, 12/7/10, 4 pages BB Second Trimester Report, 3/7/11, 5 pages CC Vocational History, 2010/2011, 1 page DD Transition Meeting Form, 3/29/11, 3 pages EE Career Assessment, 9/20/10, 6 pages
FF Work Based learning Profile, 12/15/10, 8 pages GG Student Interview, 2/17/11, 4 pages HH Teacher Assessment, 2010/2011, 13 pages II Evaluation, 11/06 & 13/10, 10 pages JJ Proof of Payment, 5/27/11, 2 pages KK School Program Description, undated, 2 pages LL School health Curriculum, undated, 9 pages MM School Social Skills Curriculum, undated, 3 pages NN School Fall Curriculum Syllabus, undated 3 pages OO School Vocational Ed. Program, undated, 6 pages PP School Career Exploration Curriculum Guide, undated, 1 page QQ Curriculum Guide Social Studies, undated, 2 pages RR Curriculum Guide English Language Arts, undated, 3 pages SS Curriculum Gide Mathematics, undated, 3 pages TT Curriculum Guide Science, Undated, 3 pages UU Curriculum Guide Life Skills, undated 3 pages VV Curriculum Guide Art, undated, 2 pages WW Related Service Agreement, 4/20/10, 2 pages XX 12 Month Year consent Form (SOPM), undated, 2 pages YY 12 Month School Year Consent Form, undated, 1 page AAA School Third Trimester Report Card,
2010-11, Program BBB Vocational Progress Report Third Semester, dated
6-20-11, Program CCC Web page NYC DOE, 7/12/11, 1 pg. DDD Procedural Safeguards Notice, 9/1/07, 52 pgs. EEE Procedural Safeguards Notice, undated, 49 pgs. FFF 12-Month School Year Consent Form, dated 3/4/10,[1] pg.
DEPARTMENT OF EDUCATION DESCRIPTION
2 Progress Note, 1/20/10, 4 pages 3 Progress Report, 1/31/10, 3 pages 8 21 4 Annual Report, 2/1/10, 2 pages 5 Progress Report, 2/1/10 6 Evaluation, 2/20/08 & 2/27/08, 11 pages 7 Individual Transition Plan, 2009-2010, 3 pages 8 Report Card, 2009-2010 School Year, 3 pages 9 DOE IEP, 3/10/10, 18 pages 10 DOE Final Notice of Recommendation,, 6/10/10, 1 page 11 Due Process Complaint, 2/15/11, 5 pages 12 DOE Due Process Response, 2/25/11, 3 pages
13. Memorandum of Law for DOE, undated, 9 pages
IMPARTIAL HEARING OFFICER DESCRIPTION
I IHO Interim Order, 5/23/11, 8 pages II Closing Brief for DOE, 9/13/11, 21 pages III Parents Memo of Law in Closing Agreement, 32 pages
Footnotes
[2] I submitted the Interim Order dated May 23, 2011 to the DOE Impartial Hearing Office. I deliberately did not include an appeal notice in the Interim Order, since parties may not pursue an interlocutory appeal from an impartial hearing officer‟s interim order unless it is an order of pendency (8 NYCRR §279.10 [d]). The DOE Impartial Hearing Office, on its own initiative, added the appeal notice to my Interim Order dated May 23, 2011. Upon learning that the DOE Impartial Hearing Office had modified my Interim Order, I instructed the DOE Impartial Hearing Office to remove the appeal notice. The DOE Impartial Hearing Office issued a “Corrected” Interim Order on May 24, 2011.
[4] The Second Circuit has adopted a two-part test utilized by other circuits for determining whether a student has been offered a placement in the least restrictive environment. The two-part test focuses on: (1) “whether a student can be satisfactorily educated in the regular classroom with the benefit of supplemental aides and services”; and (2)
[5] The Court found that IDEA‟s requirement that special education placements meet the standards of the state education agency cannot be applied to parent placements, since it would be inconsistent with the goals of IDEA to preclude parents from placing their child in an appropriate program merely “because the private school lacks the stamp of approval of the same public school system that failed the child‟s needs in the first place.” Carter, supra, quoting Carter v. Florence County. Sch. Dist., 950 F.2d 156 [4th Cir. 1991]. Therefore, a parent‟s “failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement.” Id.
[6] See M.H. and E.K. ex rel. P.H., 712 F. Supp. 2d 125, 54 IDELR 221 [S.D.N.Y. 2010] (characterizing the following as procedural issues: failure to conduct an FBA, measurability of IEP goals, and evaluative criteria for IEP goals)
[8] “Functional behavioral assessment means the process of determining why a student engages in that impede learning and how the student's relates to the environment.” 8 NYCRR §200.1(r).
[9] I note that there is no mention of STUDENT‟s inappropriate touching in the Present Levels of Performance section of the IEP or in the IEP goals (Tr. 100; DOE Ex. 9-4 & 9-11). See infra “Substantive Requirements” section of this decision for further discussion of STUDENT‟s IEP goals.
[11] I note that “„[T]he sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers.‟” P.K. and T.K. ex rel. S.K. v. New York City Dep‟t of Educ., 57 IDELR 105, 111LRP 54995, 09 CV 1472 [E.D.N.Y. 2011] quoting Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 40 IDELR 2 [2d Cir. 2003].
[12] I note that “. . . the law does not guarantee parental participation in site selection.” R.K. ex rel. R.K. v. New York City Dep‟t of Educ., 09-CV-4478. 111 LRP 22787 [E.D.N.Y. 2011]; see also T.Y., K.Y, ex re. T.Y. v. New York City Dep‟t of Educ., 584 F.3d 412, 53 IDELR 69 [2d Cir. 2009] (failure to identify a specific school on the IEP is not a per se IDEA procedural violation).
[13] See supra “Procedural Requirements” section of this decision for a discussion of the measurability of STUDENT‟s IEP goals.
[14] Cf. T.Y. ex rel. T.Y v. New York City Dep‟t of Educ., 584 F.3d 412, 53 IDELR 69 [2d Cir. 2009] (where there was “substantial evidence in the record that the 1:1 aide provided significant benefits to T.Y. in addressing the problematic behaviors” the court found that the failure to create an FBA or BIP did not amount to a denial of FAPE) (emphasis added).
[15] Students in special classes must be grouped according to the “the similarity of the individual needs of the students according to [their] levels of academic or educational achievement and learning characteristics.” 8 NYCRR §200.6[h][2][i]; see also 8 NYCRR §200.1[uu].
[17] STUDENT‟s 2010-11 IEP describe his present levels of academic performance as falling in the grade range (DOE Ex. 9-3), within the range of academic functioning of the students in Mr. s summer 2010 class ( - to grade in the areas of reading and math) (Tr. 293, 295) and his 2010-11 school year class (two students were working at the grade level and one was working about “a little over grade”) (Tr. 294-95).
[18] While Dr. ‟s most recent Psychological Evaluation indicates that that STUDENT earned Basic Reading Grade Equivalent and Numerical Operations Grade Equivalent, this testing was not conducted until well after the 2010-
[19] I note that PARENTS reliance on Mr. ‟s testimony that no other student in his 2010-11 class was recommended to receive as many IEP related services as STUDENT (Tr. 211, 673-74, 677; IHO Ex. III at p. 18) is not dispositive of whether DOE of was unable to deliver all of the recommended services. Dr. testified that STUDENT should receive all of his related services at school (Tr. 1411-12).
[21] Mr. testified that if a related service provider felt that would only change the mandate service from “separate location” to a “push-in service” by reconvening the CSE (Tr. 678-80).
[22] In M.S. ex rel. M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271 [E.D.N.Y. 2010], Judge reasoned that the “bare fact” that the summary data in a Special Education Service Delivery Report indicated that the school had not always delivered all of the recommended special education services to all of its students did not mean that the school would have been incapable of delivering services to the student at issue; I note that I do not rely on the courts‟ mention of the “separate location” designation a basis for discounting the relevance of the Special Education Service Delivery Report. Id.; see also A.R. & L.R. ex rel. E.L. v. New York City Dep‟t of Educ. 10 CV 6841, 111 LRP 52959 [S.D.N.Y. 2011] citing M.S.
[27] STUDENT‟s father testified that at the March 10, 2010 CSE meeting he and STUDENT‟s mother informed the CSE that STUDENT was unavailable to attend CSE recommended summer programming (Tr. 1523); therefore, the July 2, 20101 letter was provided to the district well in advance of the September 2010 start of the mandatory school year.
[1] Education Progress Report, 2/9/10, 1 page