NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: November 21, 2011
December 19, 2011
Actual Record Close Date: December 23, 2011
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 21, 2011
Attorney — Student
Parents
District Representative — DOE
Psychologist (Via telephone) — DOE
Social Worker (Via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 19, 2011
Attorney — Student
Parents
Teacher — Student
Principal — Student
DOE Representative — DOE
Special Education Teacher — DOE
— DOE
On April 18, 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 . The parent requested the hearing on April 14 (1) to challenge the alleged 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 (2) to seek reimbursement for tuition at the (“ ”), a non-public school (Joint Ex. A).[1]
The hearing on the merits was scheduled for June 21. This date was adjourned because parent‟s counsel had a family emergency. The hearing was rescheduled for July
28. The parent requested an adjournment of this date because ‟s school was closed for the summer, and she was unable to obtain witnesses from the school. The hearing was rescheduled for October 14 and adjourned at the parent‟s request due to religious observance. The hearing commenced on November 21 and was completed on December
19. 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 for the submission of this written decision was extended to July 28 at the parent‟s request because parent‟s counsel had a family emergency; the compliance date was then extended to August 27 and September 26 at the parent‟s request because the child‟s school was closed for the summer and she was unable to secure the participation of these non-party witnesses; the parent then requested an extension to October 26 and then to November 25 because the family was observing religious holy days; the final extension to December 27 was made at the request of both parties because the Department representative and parent‟s counsel were both attempting to secure the cooperation of a Department witness and non-party witnesses from the child‟s school (see IHO Ex. I [notice to parties with explanations re: extension]). The record closed on December 23 upon the entry into the record of the hearing officer‟s notes of the last day of hearing (see footnote 3 below).
Background
is year-old boy who has been diagnosed with (“ ”) and suffered . He also has a . His skills are . He continues to require assistance with . His disability is classified as . This classification is not in dispute. The School District‟s Case , a certified bilingual school psychologist employed by the Department of Education, testified that he participated in a CSE meeting for in April 2010 (trans. 13). Mr. Leon recalled as “a child with a specific case of being and needing ”[2] (trans. 14). The parent, a supervisor from the , a , ‟s teacher from the , a general education teacher and a social worker also attended the meeting (trans. 14-16). The CSE had available a therapy report, an report, a social history, and reports from other service providers (trans. 18-19). At the time of the meeting, was attending at the . The language of instruction at that school was English. The language employed in his therapy was English (trans. 19).
The CSE recommended that attend a special class in a special school with a behavior management paraprofessional and receive the related services of orientation and mobility instruction (five 100 minute sessions per week, ), (two 30 minute sessions per week, ), physical therapy (two 30 minute sessions per week, ), therapy (three 30 minute sessions per week, ) and services (two 30 minute sessions per week, ). All the services set forth on the IEP were to be delivered in English (trans. 20). Mr. recalled that the parent and the service providers agreed that services should be provided in English (trans. 20). All ‟s previous services had been delivered in English (trans. 21). Mr. denied that services were offered to in English because they were not available in Yiddish (trans. 22). The CSE meeting was conducted in English and the parent spoke English at the meeting (trans. 23). The team reviewed the evaluation and took the IEP goals from that document. The evaluation noted that ” for and recommended that he receive therapy in English (trans. 27, 35; Parent‟s Ex. O). At the CSE meeting, according to Mr. , the therapist informed the team that the parent had requested that continue to receive these services in English (trans. 37). Mr. explained that had difficulties— he did not speak either and was reported to (trans. 28). His would be present regardless of the “language” spoken with him (trans. 34-35). was familiar with the classroom vocabulary in English, had a “repertoire” of English words, and sang songs in English (trans. 35).
The IEP notes that:
It is difficult to accurately assess ‟s cognitive understanding due to the fact that he tends to become in “his .” enjoys singing . . . throughout the day. . . . He will such as “ .” He will , but this is not always .
will sometimes state ]; he will sometimes , but he prefers to out of context throughout the day . . . .
requires in order to participate actively within the classroom (Joint Ex. N at p. 3).
The IEP states that ‟s “home is bilingual and his first language is ” and that the “ continues to be a complication in his acquisition to English but he has become more comfortable [with] directions in English and the use of a limited number of English words” (Joint Ex. N at p. 4; see also Joint Ex. O). The IEP also states that ‟s “ and requires additional ” but that a was not required (Joint Ex. N at p. 5).
The IEP includes annual goals and short-term objectives with respect to , orientation skills, matching and sorting, gross motor skills, receptive language, expressive language, functional hand skills, self-skills, grasp and manipulation skills, posture and locomotion, self-regulation, interpersonal skills, eating skills, and toileting skills (Joint Ex. N at pp. 9-19).
Mr. opined that a 12:1:4 program was an “appropriate environment” for but did not provide reasons for this opinion. He was not asked for the basis of his opinion (trans. 24). Mr. also opined that did not require support in the classroom. While might use at home, he did not use in school (trans. 36).
, a licensed school social worker employed by the Department of Education at and in , testified that he conducted a classroom observation of in his program at the in spring 2010 (trans. 53; Joint Ex. L). He was at the school for one and one-half to two hours and spoke with ‟s teacher and service providers and observed (trans. 54).
One of the activities Mr. observed was an orientation lesson on cane use (trans. 54). The language of instruction in the class was English and all services were provided in English (trans. 54-55). had difficulty interacting with his and had “very limited ” (trans. 55). He worked with instructors and sometimes “ ” and needed “ ” (trans. 56). was “ . . . not as aware of the world around him” (trans. 56). During the observation, did not communicate in words (Joint Ex. L at p. 6).
His report notes that ‟s classroom teacher stated that needed a program for the next school year (trans. 59-60). The teacher informed Mr. that she believed that should be enrolled in an ” and a program with a paraprofessional (Joint Ex. L at p. 2). ‟s teacher also informed Mr. that had “not made much progress” in the class, that he “displays ” and that he “is very many areas” (Joint Ex. L at pp. 1, 3). In school, “constantly” . He needed assistance in order to and in all and . The teacher expressed her concerns to Mr. about ‟s (Joint Ex. L at pp. 1, 2). had become “a little more ,” has and , and had “ with others” (Joint Ex. L at p. 2). He , , and (Joint Ex. L at pp. 3, 4). often , was unable to and (id; see also Joint Ex. S).
‟s teacher asked for further evaluation of . Mr. wrote in his observation that the teacher reported to him that: “ ‟s need to be looked at further. . He and his own world. Further evaluations about these behaviors would be helpful” (Joint Ex. L at p. 4).
Mr. participated in ‟s April 2010 CSE meeting (trans. 56). He explained that the program provides a very “ ” for multiply (trans. 56). At the meeting, according to Mr. , ‟s providers stated that should be instructed and receive therapy in English and that to introduce “was going to be even ” (trans. 57).
, a certified special and general education teacher, testified that she was the classroom teacher of a class at at , a District school.[3] During the 2010-2011 school year, she taught a class of five and six year old students with multiple disabilities. In September 2010, there were seats available in her class, and if had attended the school, he would have been in her class. The class included students with impairments. Two of the students had . Some of the students were , some spoke with , and some used . One of the students had , and Ms. employed a positive reinforcement system with the student. Some of the students had . Ms. implemented the school-created curriculum which was aligned with the New York State standards for reading, writing, math, ADL skills and skills. She assesses students at the beginning and end of each school year and also to assess progress informally during the school year.
The school had a teacher who does both -in services.
The class schedule for the 2010-2011 school year included , social studies, English Language Arts, math, art and science. Ms. differentiated instruction and individualized the program for each student. was spoken by and one at the school.
Ms. stated that, based upon the information in his IEP, had the same academic level as some of the students in the class (IHO Ex. II at p. 1). His - levels were similar to those of the students in her class. She used (different levels of prompting) to promote independence in her students and with both peers and staff (IHO Ex. II at p. 1).
The school had services, adaptive physical education, and a nurse. Ms. ‟s classes have included students with . School staff calls the nurse if they observe a student having a seizure (IHO Ex. II at p. 1).
Ms. reviewed the goals for set forth in the IEP and described how she would address them (IHO Ex. II at p. 1). She explained that she would work closely with the on how to address the vision instruction goals. Orientation and mobility would be addressed as a pull out, as would goals. goals would be addressed both in sessions and in the classroom. ADL skills would be addressed by Ms. in the classroom. She would consult with the on how to address some of the goals. She would monitor ‟s
Impartial Hearing Officer Exhibit II and are cited herein. I had discarded page one of my notes after summarizing it in this decision, and before I realized that I would be required to enter my notes into the record. These notes were provided to the parties prior to the issuance of this decision. If I receive a copy of the transcript, I will immediately file a corrected decision adding only page citations.
in the classroom. All of the students in her class during the 2010-2011 school year received their related services at the school. Ms. opined that based upon his IEP, would have “fit” in her class (IHO Ex. II at p. 1).
Ms. was not trained in and was not provided in her classroom. If a student were to require , she would go to training and seek the assistance of the Department‟s trainer. She would work with the ESL and bilingual teachers to learn some phrases to use with (IHO Ex. II at p. 1). The Parent‟s Case The parent testified that suffered from . He has been receiving special educational services since he was old, first through and then through the CPSE. His services through were provided in (IHO Ex. II at p. 5). attended the for the Blind pursuant to a Department placement when he was . He did not do well either at this placement. The staff was not familiar with and did not try to develop the that he had. did not understand English and no one at the school could respond to him in when he spoke in . As a result, he was frustrated and lonely and would engage in during his related services (IHO Ex. II at p. 5).
At the CSE meeting, the parent told the team that needed to be in a program because he needed to be with people who understood what he was saying. The speech therapist from the also informed the CSE of her recommendation that attend a program. The parent stated at the meeting that she disagreed with the recommendation for an English-only program. Department personnel at the meeting informed her that the Department did not have a for “so why write it down” on the IEP (IHO Ex. II at p.
5).[4]
The parent visited the proposed placement in June 2010. School personnel showed her a class and informed her that this would be the class would likely attend (IHO Ex. II at p. 5). All the students in the class were . Many of the students were . The parent also met with the school‟s vision educator who was unfamiliar with and who used techniques tailored for children with (IHO Ex. II at p. 5).
started at EHA in September 2010. During the 2010-2011 school year, he progressed “phenomenally”—his decreased dramatically, his have increased, and he was (IHO Ex. II at p. 5).
, the head of , testified that she had a master‟s degree in special education (IHO Ex. II at p. 2). is an ungraded special education school for children from through years of age. During the 2010-2011 school year, there were 30 students enrolled in the school. All the students have disabilities and have IEPs created by the Department. Students are multiply disabled, cognitively disabled, autistic, ly impaired, learning disabled and emotionally disturbed. The students are grouped by functional level based on assessments conducted prior to admission (IHO Ex. II at p. 2).
Each class at includes four to seven students with two to three special education teachers. provides related services with certified providers.
The 2010-2011 school year was ‟s first year at . provided with an individualized program that addressed his and needs. His class included six students with one special education teacher, one assistant teacher and four paraprofessionals. School personnel implemented the Department‟s IEP. also provided with occupational, physical and speech therapies; a paraprofessional; augmentative communication; behavioral/academic instruction; and feeding therapy (IHO Ex. II at p. 2). charges $60.00 per 30 minute related services session, rather than the Department rate of $45.00 per 30 minute session, because there is “a lot of paperwork involved” (IHO Ex. II at p. 2). has a nurse on staff. does not have orientation and mobility instruction; Ms. contended that such services were provided by the occupational and physical therapists. does not provide vision services; Ms. stated that these concerns were addressed by the classroom teacher. ‟s consisted of a (IHO Ex. II at pp. 2, 3).
All instruction and were presented in . Ms. stated that responded “better” to than to English (IHO Ex. II at p. 3).
is not affiliated with any religious organization. There is no religious instruction at the ; one of the songs the children sing during circle time is about prayer. Sometimes, the children sing a song about religious holidays (IHO Ex. II at p. 3).
, a certified special education teacher, testified that she was trained in therapy and Floortime/DIR (IHO Ex. II at p. 3). During the 2010-2011 school year, was one of the students in her class. The class included six students with , and/or . Three of the students had . All the students were on similar academic functioning levels of “prereading, pre-writing, pre-math.” There were two assistant teachers, professionals and unspecified therapists and consultants in the classroom. All of the teachers spoke (IHO Ex. II at p. 3).
Ms. stated that was “internally involved in his own world” and had “problem” behaviors such as which impeded his learning (IHO Ex. II at p. 3). Ms. worked with to decrease his and . These efforts were successful in reducing the and increasing his engagement. As a result, she was able to move to working on pre-academics (IHO Ex. II at pp. 3-4).
Ms. reduced ‟s through preventive strategies, redirection, positive reinforcement, and by encouraging him to request desired objects. She used a approach to academics and principles. All instruction was in . Ms. exposed to English, but he responded better to instruction in Yiddish (IHO Ex. II at p. 4).
Ms. explained that as a result of his , has difficulty seeing details but is attracted . In order to address ‟s , Ms. participated in monthly conference calls with a consultant specializing in and implemented the strategies provided by the consultant. Ms. also consulted with a Department of Education vision educator. Ms. provided supports to throughout the day and in every activity appropriate to a child with — such as a and . In addition, instruction was provided to in a quiet environment, which permitted him to develop and use his auditory skills, and Ms. Englander used multisensory approaches, particularly kinesthetic approaches, to give a variety of modalities with which to learn. With respect to ‟s need for orientation and mobility services, Ms. set up a system of “landmarks” to teach how to ambulate in the classroom environment and worked on the mobility and orientation goals set forth in the IEP (IHO Ex. II at p. 4).
Ms. worked on the vision goals set forth in the IEP, such as matching and sorting objects. Ms. noted that needed supports to complete these tasks; so she provided such supports. Ms. also worked with on the rest of the goals set forth in the IEP, providing with as necessary (IHO Ex. II at p. 4).
Ms. collaborated daily with ‟s related services providers and participated in weekly team meetings (IHO Ex. II at p. 4).
needed small group and instruction because if there was too much “going on,” he would retreat into his own world. Ms. uses discrete trial teaching with positive reinforcers and highly motivating tasks, for three periods per day (for a total of two hours and 15 minutes per day) with . She based the goals on the assessment and modified the goals as met goals. Circle time and peer play was used in the classroom to foster social interactions between the students. made progress in this area—he learned to participate in circle time activities and to engage in peer play, including learning how to wait and take turns (IHO Ex. II at p. 4).
also made progress in the areas of . Through movement and music activities, he improved his attending skills and ability to follow directions. He also made progress in the area of ADL skills, including , . Furthermore, progressed in his ability to respond to and interact with his environment, to follow directions, to sit appropriately, and to attend to lessons and tasks. He decreased his and was thereby able to engage in pre-learning activities. Ms. attributed this progress to the , individualized instruction in with supports (IHO Ex. II at pp. 3, 4).
Ms. did not know what the “ ” set forth in the addendum to the enrollment contract was. She stated that he did not have an assistive technology device.
The parents informed the CSE in writing by letter dated August 23, 2010, that they were rejecting the proposed placement, placing at , and would be seeking tuition reimbursement (Joint Ex. M).
The parents signed a contract with the dated September 6, 2010 (Joint Ex. B). The contract sets forth the following costs: tuition, $60,000.00; related services, $69,000.00 (at the rate of $120.00 per hour); a paraprofessional, $22,000.00 per year; aquatic therapy, “behavioral academic instruction” evaluation and 20 hours per week at $1,080.00 and $24,000.00 per year, respectively, and augmentative assistive technology evaluation and instruction (Joint Ex. B at p. 6; see also Joint Exs. I, K). The parents have taken out loans to pay to EHA $31,500.00 of these amounts (Joint Exs. C, D, E, K). According to Ms. , the parents are responsible for paying the remainder of the tuition and fees.
The school day at commences at 9:00 A.M. and ends at 4:30 P.M. Monday through Thursday and 12 noon on Fridays (Joint Ex. F).
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 parents‟ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‟ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).
I. The Appropriateness of the School District‟s Program for 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); 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 decisionmaking 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 child to receive an educational benefit and be the least restrictive environment for the child. 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.
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 does not provide sufficient special education services to address his identified extreme special educational needs. Specifically, the IEP sets forth a program that is inadequate for because it was not reasonably calculated to result in a “meaningful” educational benefit for him. At the time that the CSE met, the CSE itself was under a misapprehension as to ‟s . The CSE chair, Mr. , believed that was .” is not blind and has a number of significant special educational needs. These needs (at the time of the CSE meeting) included (and related ), with his in his environment (which also interfered with his ). Language of instruction was a component of each of these issues. The CSE placed in an English-only program, rather than a bilingual program because his then-current program was an English program. This is the wrong way of looking at this issue—in reality, everyone in that program was speaking English except for ; was speaking in , and no one else understood him. As a result, and according to his classroom teacher (as described in Mr. ‟s classroom observation) and according to the speech therapist present at the CSE meeting, needed a -speaking program, and he needed in order to engage in classroom activities, play, and complete tasks. The classroom observation also described ‟s extremely low level of functioning and his declines in the English-only program: increased , , ,” and . was in his own world in the English-only program, becoming in . As a result, the CSE should have recommended a bilingual program or, at the very least, a bilingual paraprofessional for .
Furthermore, the program was inadequate to address ‟s unique and identified special educational needs. required individualized instruction. There is one special education teacher in the class. He or she would be unable to provide sufficient teaching to throughout the school day. was unable at the time of the CSE meeting to function in a group instructional setting nor learn independently and, as a result, would not be able to benefit from the instruction presented in a classroom. While there might have been sufficient adult support to address his in this setting, he needed individualized and and small group instruction, that should have come from a special education teacher. While Ms. was clearly a knowledgeable, talented and conscientious educator, the composition of the class would not have permitted her to provide the individualization and instruction required.
The evidence presented at the hearing establishes that the Department did not offer a free appropriate public education for the 2010-2011 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.
II. The Appropriateness of EHA Program
The parent bears the burden of proof concerning the appropriateness of EHA 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 at EHA 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 (emphasis added).
During the 2010-2011 school year at , experienced a dramatic decline in his , an increase in his , and an increase in his use. Ms. described the strategies she used in the classroom to reduce ‟s and to with his environment in the classroom. needed, and received, small group and instruction, which prevented his retreat into his own world and made him available for learning. Ms. used discrete trial teaching with and highly motivating tasks to keep him engaged in learning. improved his attending skills, ability to , and (including ). As a result, Ms. was able to begin to work with on pre-academic skills. required instruction in order to learn and to address his selfcare delays. provided with this level of support. Ms. attributed ‟s progress to the , individualized instruction in with supports.
Ms. had also implemented a systematic approach to providing supports to and strategies to develop both his and other ( ) skills. She worked with on the vision goals set forth on the IEP as well with respect to developing his orientation and mobility skills and social skills. Ms. used time and to between the students. made progress in as well—he learned to participate in activities and to engage in peer play, including learning how to .
also provided with needed , and .
The standard for the appropriateness of a parental placement is “reasonableness” not perfection. did not provide the range of orientation and mobility instruction that probably needed. It is difficult to ascertain the level of services he needed in this area since the Department did not conduct an assessment in this area. Given the dramatic nature of ‟s progress at and the lack of an assessment regarding ‟s orientation and mobility needs, should not be found to be an inappropriate placement for on this basis.
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at was appropriate for .
III. Equitable Considerations
With respect to the third Burlington criterion, whether equitable considerations support the parent‟s claims, the evidence establishes that the parent cooperated with the CSE by enrolling in the Department‟s programs for , attending and participating in the CSE meeting, communicating with School District personnel, and visiting the placement at . At the CSE meeting, the parent was open and forthcoming with School District personnel with respect to ‟s needs.[5]
The contract addendum lists the following costs for : tuition, $60,000.00; related services, $69,000.00 (at the rate of $120.00 per hour); a paraprofessional, $22,000.00 per year; aquatic therapy, “behavioral academic” evaluation and instruction for 20 hours per week at $1,080.00 and $24,000.00 per year, respectively, and augmentative assistive technology evaluation and instruction. Based upon the testimony of Ms. and Ms. , I must disallow payment for aquatic therapy, “behavioral academic instruction” and evaluation, and evaluation and instruction. The evidence does not demonstrate that received “ ” and evaluation and instruction. Ms. did not know what the “behavioral academic instruction” was; and the only had was a , which does not require additional evaluation and instruction—it is a that a student sticks on the board. might be an enjoyable activity for , but it is not a service required in order for him to make meaningful educational benefit at . With respect to related services, Ms. ‟s explanation for the high cost of related services, that there was a great deal of “paperwork,” does not justify the rate charged by . Therefore, I will grant reimbursement at the Department‟s approved rates for , and delivered on a basis.
IV. Evaluations
The parent did not request evaluations of . However, a hearing officer has independent authority to order school districts to conduct evaluations. 8 N.Y.C.R.R. §§200.5(g)(2), 200.5(j)(3)(viii). There was insufficient evaluative material before the CSE to understand ‟s and the impact of that on his educational functioning. I find that the Department should conduct, or cause to be conducted, a medical evaluation, an assessment to determine the impact of ‟s on his educational functioning, and a mobility and . The may be a component of the vision evaluation. Department personnel shall also attempt to conduct a of . might not be testable with many of the standard instruments; however, the assigned should attempt an evaluation and include in that attempt an inquiry into . I do not order a assessment at this time because, although the CSE should have had such an evaluation conducted given ‟s behaviors at the , his behaviors have decreased dramatically at .
Therefore, for all the above reasons, it is ordered that:
1. The Department of Education shall reimburse the parent for the base tuition in the amount of $60,000.00 and the portion of the tuition attributable to the paraprofessional in the amount of $22,000.00 that she has paid to for ‟s enrollment for the period from September 1, 2010 through and including June 30, 2011. The amount of reimbursement shall not exceed $82,000.00 and shall be paid by the Department within fifteen business days of receipt from the parent of proof of payment.
2. The Department of Education shall reimburse the parent for the following related services at the Department‟s approved rates for the period from September 1, 2010 through and including June 30, 2011: (two 30 minute sessions per week, ), physical therapy (two 30 minute sessions per week, 1:1), and therapy (three 30 minute sessions per week, ). Reimbursement shall be paid by the Department within fifteen business days of receipt from the parent of proof of payment.
3. The Department of Education shall conduct, or cause to be conducted, a medical evaluation; a psychoeducational evaluation; an assessment to determine the impact of ‟s on his educational functioning; and a mobility and orientation assessment (which may be a component of the ) on or before January 30, 2012. The CSE shall promptly reconvene to consider these evaluations. Dated: December 27, 2011
______________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer JMB: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.ht
DOCUMENTATION ENTERED INTO RECORD
Joint Exhibits
A. Copy of Parent‟s Impartial Hearing Request, 12/20/10, 1 page
B Copy of Contract for , 9/6/10, 6 pages
C Loan Agreement and Promissory Note, 9/1/10, 2 pages
D Personal Loan Agreements for 3rd Party Checks, 7/26/11, 4 pages
E Proof of Payment to , various dates, 9 pages
F Schedule for , undated, 2 pages
G School Attendance for , undated, 1 page
H Related Service Attendance Record, undated, 3 pages
I Related Service Provider Affidavits, various dates, 6 pages
J School Description, undated, 1 page
K Affidavit of Payment for , 6/6/11, 1 page
L Teacher Interview and Classroom Observation, 3/24/10, 8 pages
M Letter Giving Notice of Placement , 8/23/11, 1 page
N DOE‟s IEP, 4/21/10, 22 pages
O Progress Report, 2/25/10, 4 pages
P Social History Update, 4/8/10, 3 pages
Q , 3/4/10, 3 pages
R Educational Evaluation, 1/2/10, 2 pages
S Report, 2/5/10, 2 pages
Impartial Hearing Officer Exhibits
II Hearing Officer Notes, 12/19/11, 5 pages
Footnotes
[1] The parties agreed to submit joint exhibits. The hearing request is dated December 20; however, it was not filed until April.
[2] is not . He has some . The nature and the extent of the evaluative material before the CSE (with the exception of Mr. s classroom observation) was a disgrace. This issue is addressed in Section IV at the end of this decision.
[3] I have not received the transcript from this day of testimony. On December 19, the day of the hearing, I had requested that this transcript be expedited. I should have received the transcript on December 22. When I did not receive the transcript by late afternoon on December 22, I inquired both of the staff of the Department of Education‟s Impartial Hearing Office and of the transcription company. Both the staff of the Impartial Hearing Office and the staff of the transcription company informed me that I would have the transcript on December 23. I did not receive the transcript on December 23. I used my detailed notes of the testimony to prepare this decision. Five of the six pages of these notes are entered into the record as
[4] I find that the parent was an entirely credible witness with respect to what transpired at the CSE meeting and with respect to the composition of the proposed class that she was shown at P. 141.
[5] The parent, in her hearing request, sought only reimbursement as a remedy. Furthermore, the parent did not offer in evidence documentation or testimony of her inability to pay expenses at EHA. See Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403 (S.D.N.Y. 2011)(direct payment of tuition where parents present a meritorious Burlington claim but “lack the financial means to pay private school tuition out-of-pocket;” “Congress did not intend the child‟s entitlement to a free education to turn upon her parent‟s ability to „front‟ its costs”). Therefore, I do not consider direct payment as a remedy.