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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 18, 2011
September 22, 2011
November 10, 2011
December 1, 2011
Actual Record Close Date: December 12, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 18, 2011
ESQ., Attorney for Parent — Student
Parents
District Rep. — DOE
District Rep. (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 22, 2011
ESQ., Attorney, Office — Student
Parents
CSE, District Representative — DOE
Administrator of Special Education, — DOE
Network Representative, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2011
ESQ., Attorney, Office — Student
Parent/Mother — Student
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 1, 2011
Attorney — Student
Parents
Teacher (Via Telephone) — Student
District Representative — DOE
— DOE
On June 1, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . Another impartial hearing officer had been previously appointed to this matter.[1] The parent requested the hearing on March 1, 2011. The parent amended the hearing request on April 6.[2] The amended hearing request challenges the failure of the Committee on Special Education for District (the “CSE”) to provide with a free appropriate public education for the 2010-2011 school year and to seek reimbursement for special education services the parent obtained for (Department Ex. 1).
At the conclusion of the second resolution period on June 20, a hearing was scheduled for July 18. The parent requested an adjournment because she was not able to appear and because witnesses from the student‟s school were not available. The hearing commenced on August 18. The Department of Education requested a continuation on the record because, even though representatives of the Department had participated in scheduling the hearing date and had received notice of the hearing date from the New York City Department of Education‟s Impartial Hearing Office, the Department‟s representatives appearing at the hearing stated that they were unaware of and, as a result, were unprepared for, the hearing (trans. 6, 9). Parent‟s counsel consented to the adjournment request on condition that the matter be heard on the re-scheduled hearing date and that if the Department was unprepared on that date then the Department would be found in default (trans. 12-13). The hearing was continued on September 22, and the Department presented, and rested, its case. The hearing was continued on November 10. ‟s teacher from the non-public school had been summoned to jury duty on that date (trans. 51). Furthermore, the parent and the Department had agreed on ‟s special education program for the 2011-2012 school year, and is receiving that program (trans. 52); as a result, the delay would not have an impact on (trans. 53-54; IHO Ex. I). Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
The compliance date was extended to August 18 at the parent‟s request because she was not able to appear for the hearing and the witnesses from the student‟s school (all non-party witnesses) would not testify during the summer months. Since the parent would be prejudiced by a denial of the extension, the hearing officer granted the extension. The compliance date was extended to September 17 and then October 17 and November 16 at the Department of Education‟s request in order to permit the Department to prepare for the hearing and have witnesses available and at the parent‟s request due to religious observance. There was a final extension to December 16 granted at the parent‟s request because the student‟s teacher had been summoned to jury duty (trans. 105-107; IHO Ex. I). Due process concerns required that this extension be granted, and these concerns are set forth above and in IHO Exhibit I.
The record closed on December 12 upon the receipt by the hearing officer of the transcript.
BACKGROUND
is a nearly year-old young man whose disability is classified as . This classification is not in dispute. He has been disorder “( attends ,a non-public general education school at which he is enrolled in the , a type special education service. The parent is seeking reimbursement only for the cost of the program.
THE SCHOOL DISTRICT’S CASE
The CSE convened on May 25, 2010 to formulate recommendations for ‟s grade year. The CSE recommended that attend general education with Special Education Teacher Support Services (“SETSS”) for five periods per week in a separate location in a group of no more than students (Department Ex. 2 [emphasis supplied]). The IEP created at this meeting states that takes medication at home for difficulties. The meeting was attended by the parent, a district representative, a general education teacher, a school psychologist, a school social worker, a special education teacher, a parent member and a school principal. The IEP notes that on the WISC-IV, obtained a full scale I.Q. score of , in the range. On the KTEA-II administered in May 2010, he attained the following scores: letter and word recognition,
, grade instructional level; spelling, grade level; reading comprehension, , grade level; math concepts, , grade level; and math computation, , grade level (Department Ex. 2 at p. 3). On informal assessments of his writing, he had difficulties with , and . His academic management needs include , provide , reward to minimize . exhibits “ ” which has (Department Ex. 2 at p. 4). The IEP includes goals in the areas of math , , .
The IEP states that “requires a part time” special education program “to address academic weakness in a smaller setting one period per day” (Department Ex. 2 at p. 9).
, a special education teacher and special education administrator, testified that she was responsible for a network of schools which included (trans. 26). Ms. described as a “ ” with only to students with IEPs. SETSS is provided at the school. In grade, is a push in service for both English Language Arts and math in order to “concentrate” on passing State tests (trans. 30). Ms. explained how s IEP goals would be addressed by the teacher through small group instruction within his general education math class and by conferring with his general education teacher (trans. 31-33, 35-36). The teacher would also address ‟s reading goals (trans. 38).
THE PARENT’S CASE
The parent testified that during the 2010-2011 school year, attended the Program at , a private general education school (trans. 58). She described the Program is a special education program to help students in (trans. 58). The 2010-2011 school year was ‟s first year in the program. Prior to attending , attended a from grade (trans. 59).
The parent described as a “very good hearted child” who is and is “ ” in the (trans. 60). During the 2009-2010 school year, when attended a general education school, , he was evaluated by the CSE, and the CSE met on May 25 and recommended SETSS (trans. 61). At the meeting, the parent participated by telephone at the suggestion of the CSE. The team discussed ‟s difficulties in the regular classroom (trans. 62). This was ‟s first IEP (trans. 63). At the time of the CSE meeting, the parent believed that would be returning to for grade, that would be provided to him at that school, and that the would “help him along” (trans. 64, 96-97).
At some unspecified point during summer 2010, the principal of informed the parent that could not return to the school for the 2010-2011 school year because the school would not be able to fulfill his needs even with the provision of SETSS (trans. 64, 95, 98, 100).
By letter dated September 4, 2010, the parent informed the CSE that, even though she had previously indicated that would attend a private school for the 2010-2011 school year, she now wished to obtain “a public placement” for him. She stated that “[i]n the interim, my son will attend the at , and if an appropriate program is not recommended, I inten[d] to seek reimbursement for the cost of his education there” (Parent‟s Ex. A). The parent testified that even though she had enrolled in , she was “definitely open to other options” (trans. 65).
The parent followed-up with a letter to the CSE dated October 19 indicating that she had not received a response to her September 4 letter and was “still interested in obtaining an IEP and placement” (Parent‟s Ex. B).
The parent wrote letter dated November 9 to the District CSE stating that she had been referred to this CSE in to request “an IEP and public school placement” (Parent‟s Ex. C). The parent stated that was attending and that she had been “requesting a public placement, and one has not been provided.”
The parent sent a follow-up letter to the District CSE dated January 6, 2011 (Parent‟s Ex. D). This letter stated that she had not received a response to her prior letter and that if she did not receive “an appropriate response,” she intended “to seek reimbursement.”
The parent sent another letter to the District CSE on February 23 indicating that she had been told to “reach out” to , the previous placement recommended for (Parent‟s Ex. E). The parent reported that she had spoken with the school‟s guidance counselor and that the guidance counselor “said that the only class [ ] could be placed in is an overcrowded class that contains student [sic] that have a lot ” and that ‟s “ could not be addressed in this setting.” The parent stated that she would be seeking reimbursement because had “not been provided with an appropriate placement.” The parent testified that the guidance counselor informed her that “would not be conducive” for and “discouraged” her from enrolling him at the school (trans. 70). The parent explained that the guidance counselor “didn‟t even want [her] to come” visit the school and “just said it was not a place” for and “there‟s no way he‟s going to do well in this kind of environment” (trans. 70, 79-80). The parent did not remember the name of the guidance counselor (trans. 81-82). The parent did not visit (trans. 102).
The parent stated that attended for the 2010-2011 school year and “felt success” (trans. 71). The program assisted with his and “ (trans. 72).
‟s schedule indicates that he attended sessions on Mondays through Thursdays from 12:15 to 1:45 P.M. and from 3:30 to 5:00 P.M. and on Fridays from 9:00 A.M. to 12:00 P.M. (Parent‟s Ex. J).
The cost of the for the 2010-2011 school year was $ (Parent‟s Ex. G). The parent has paid this amount in its entirety (Parent‟s Exs. H, I; trans. 73).
, a teacher at , testified that she had a bachelor‟s degree in liberal science and was enrolled in a master‟s degree program in special education (trans. 114). She was ‟s
3 The parent explained that the 2010 date on the document was a typographical error and that the document should have been dated 2011 (trans. 69). program teacher for the 2010-2011 school year. Ms. described as a special education program that is “a program not a program, which means we work on areas” (trans. 115, 159). The “whole program is based on , which means that the ” but is “ ” and “ ” through “doing work in ” over time (trans. 115). She taught math skills and reading skills (trans. 160). Ms. received a three week “intense course” in the program three years ago in (trans. 118).
At the start of the school year, she evaluates each student to determine his (trans. 115). After the evaluation, “every student gets a program that is designed especially for them, that they will work on the .” Ms. explained that “is not a compensatory program. We don‟t teach them to concentrate where they have a weakness. We want to strengthen the area that‟s weak. So they start at a level that is just enough challenging that they will work in a very concentrated manner, because it‟s that using of the brain in that concentrating way that will create the change in the brain, the ” (trans. 116). Furthermore, as students “do the work repeatedly for the same amount of time day after day, their work becomes automatic. And once we reach that point of automaticity we know it‟s not challenging anymore and it‟s not going to create change so we move them up to the next level” (trans. 116-117).
Students work individually (trans. 120). The “basic format” of the exercises includes the above evaluation to determine the starting level, specific daily and long term goals, and mastery of goals with then movement to the next level (trans. 117). Students know “exactly what‟s expected of them in a day, how much material they‟re supposed to cover, how much work they‟re supposed to do . . . . as they move up little by little, little by little that is creating the changes in the brain and over a long period of time it‟s a tremendous amount of change” (trans. 117).
During the 2010-2011 school year, the class consisted of ranging in ages from years (trans. 120). Ms. was assisted by a teaching assistant who was also enrolled in a master‟s program for special education (trans. 120).
Ms. evaluated before the 2010-2011 school year began (trans. 122). ‟s evaluation showed that “he definitely had a hard time” “ ,” had skills, and , and “had that were . . . running through many different areas” (trans. 123). After ‟s evaluation, the “information was sent to to the lab school where there they analyze all the material and they‟re the one who set up his program” (trans. 123). Ms. then set up ‟s daily schedule” so he knew exactly what to do” (trans. 124). The program is designed so that “the students should be independent” (trans. 124). When entered the classroom, “he knew where to go and how to get started” with . Some of the exercises are computer-based (trans. 124, 154). During class, Ms. would walk around the class, “prompting him where needed” and “if he was distracted we would put him back on task” or “if he was doing it incorrectly or needed reminders or something we did that” (trans. 125). At the end of the class, he marked off in his binder the exercises he completed and showed it to Ms. or the assistant (trans. 125-126). Computer exercises were marked and monitored by “the computer” (trans. 126).
‟s expressive was addressed through “an where he listened to sentences,” memorized the sentences “exactly,” and thereby learned how to sequence and events (trans. 129). worked on this exercise every day and “definitely” made progress (trans. 130). With respect to math, worked on a computer exercise about “memory for numbers” which was “not teaching math in the sense of learning fractions, decimals, percents, algebra and so on;” rather, it was “about increasing the to hold numbers” (trans. 130). worked on this exercise daily and was able to move through these exercises and gain “the ability to do anything with numbers” (trans. 131). The exercise covered addition, subtraction, multiplication and division and word problems using these operations in which he would “ ” and without (trans. 145, 147). With respect to , ‟s exercises consisted of , which he read and then summarized the main idea in one written sentence (trans. 132). This exercise “ ” (trans. 132). This was the hardest exercise for ; but Ms. saw “real[] ” to create (trans. 134-135). also did “ sequencing” exercises that helped him with ,” , careless errors.” Ms. did not describe this set of exercises (trans. 135-136).
Ms. used positive reinforcement strategies to increase ‟s motivation (trans. 138-139). With respect to progress, Ms. summarized that made “a lot of progress” in math, the ability to express himself, the ability to understand the main idea of a story, and in the ability to “get[] the connection between different things” (trans. 141). Ms. opined that she was able to address ‟s special education needs in the program (trans. 141).
FINDINGS OF FACT AND DECISION
A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parent‟s claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the services selected by the parents do not consist of a facility approved as a school for students with disabilities by the State Education Department (as in the instant case) is not dispositive of the parent's claim for tuition reimbursement or payment of services. Florence County School District v. Carter, 510 U.S. 7 (1993).
The central purposes of the IDEA are to ensure: (1) that 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; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B) (emphasis supplied); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.
A recommended special educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121, quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997). A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).
An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.”
Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for described in his current levels of performance and identified his special education needs. The IEP includes goals in ‟s areas of need. At the time of the IEP meeting, ‟s special educational needs were in the areas described in his IEP goals. Addressing these goals will permit to progress in academic areas.
The next step is to examine the IEP to determine whether it sets forth a program that sufficiently addresses ‟s identified special educational needs. Ms. credibly testified about the recommended placement. She described at the school as a push in service for both English Language Arts and math. Ms. explained how ‟s IEP goals would be addressed by the teacher through small group instruction within his general education math class and by conferring with his general education teacher. The teacher would also address ‟s reading goals. This was a well-thought out program. However, ‟s IEP mandates that he receive in a separate location—as a pull-out rather than the push-in service provided at the school. As a result, the Department would have been unable to implement ‟s IEP at the proposed placement. Since the Department of Education failed to demonstrate that it would have provided with a free and appropriate education for the 2010-2011 school year, the parent prevails with respect to the first Burlington criterion.
The parent bears the burden of proof concerning the appropriateness of the Arrowsmith program for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided through addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents‟ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child‟s individual needs . . . . 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.” Frank G., 459 F. 3d at 364.
Considering the “totality of the circumstances,” the evidence does not support a finding that the program addressed ‟s special educational needs. The key is that the program, as described by Ms. , is not “special education” and did not seem to address ‟s special education needs.[4] According to the results of his evaluations, needed remediation in math, spelling and writing and strategies to address his symptoms during the 2010-2011 school year. Ms. was able to address his needs in the classroom, and she clearly is a conscientious and caring individual. However, there simply was not sufficient evidence about the program and how (or whether) it addressed his needs for remediation in math, spelling and writing. Ms. testified that she did not teach “content”—but needed “content” in because he was functioning level in those areas.
According to Ms. , has made progress during the 2010-2011 school year. However, her statements regarding this progress were mainly conclusory (except with respect to ‟s ability to write ). Furthermore, progress, by itself, does not demonstrate that was an appropriate setting under the IDEA for . See Gagliardo v. Arlington Central School District, 489 F.3d 105, 115 (2d Cir. 2007) (reimbursement denied where “the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not”). As a result, the Department prevails on the second Burlington/Carter criterion.
Furthermore, both the parent and the School District have difficulties with respect to the equities. The parent changed her mind at some undisclosed point during the summer about whether she wished to “accept” a public school placement. She did not inform the Department of this change until the first week of school in September, after she had already enrolled at . However, once the parent informed the Department that she was looking for a public school placement for , the Department should have offered such a placement in a timely manner. It did not even notify the parent about a possible placement to until sometime in January 2011.
Therefore, for all the above reasons, it is ordered that:
The parent‟s request for reimbursement is denied. Dated: December 14, 2011
_____________________________
Impartial Hearing Officer
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 RECORD
PARENT DESCRIPTION
A Letter from Parent to CSE, Dated September 4th, 2010, two pages B Letter from Parent to CSE, October 19th, 2010, two pages C Letter from Parent to CSE, November 9th, 2010, two pages D Letter from Parent to CSE, January 6th, 2011, two pages E Letter from Parent to CSE, February 1st, 2011, two pages F Attendance Records, July 19th, 2011, one page G Tuition Agreement, 2010-2011 1 page H Affidavit, March 14th, 2011,[1] page I Proof of Payment, Various dates, four pages J 2010-2011 's Class Schedule, one page K Program Description, undated, one page
DEPARTMENT OF EDUCATION DESCRIPTION
2 IEP dated May 25th, 2010, twelve pages
IMPARTIAL HEARING OFFICER DESCRIPTION
I Hearing Officer‟s Email to Parties re: Extension, one page
Footnotes
[1] Hearing Officer passed away in June 2010.
[2] The amended hearing request is dated April 13, 2011 (Department Ex. A). The Impartial Hearing Reporting System indicates that the amended request was filed on April 6.
[4] I am not a (and there was no expert testimony with respect to brain or the basis of the program) therefore this decision will not address Ms. ‟s testimony with respect to the foundations of the program.
[1] Amended Hearing Request dated April 13th, 2011, one page