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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: July 7, 2011
July 26, 2011
September 9, 2011
Actual Record Close Date: October 4, 2011
Hearing Officer: Jean Marie Brescia, Esq. Hearing Officer‘s
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 7, 2011
Parents
Parents
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 26, 2011
Parents
Parents
Director of Admissions, Instructor at — Student
(Via Telephone) — Student
Teacher, Literature and Writing Instructor, (Via Telephone) — Student
Department of Education Attorney — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 9, 2011
Parents
Parents
Focus Teacher, (Via Telephone) — Student
ESQ., Attorney — DOE
Hearing Officer‘s — DOE
On May 12, 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 parents requested the hearing on May 11 to seek payment for tuition for their unilateral placement of at a non-public school. The Department of Education challenged the sufficiency of the hearing requests on May 13 and May 20. In response to each motion, the parents filed amended hearing requests on May 13 and on May 24, respectively (Department Exs. 1, 2, 3). In the second amended request, the parents challenge the failure of the Committee on Special Education for District (the ―CSE‖) to offer an appropriate special education program for the 2011-2012 school year and seek payment by the Department for ‘s tuition at , a non-public school in , for both the school year and a one-month summer program.[1]
The hearing convened on July 7, issues relating to pendency were addressed, and the hearing on the merits commenced. An Order on Pendency was issued on July 7. The hearing continued on July 26 and was completed on September 9. 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 August 21 in order to permit the Department‘s witnesses to be available, and then to September 20 in order for the parents‘ witnesses to be available. The compliance date was then extended to October 20 in order to permit the preparation of the transcript. The record should have closed on September 20 upon the receipt by the hearing officer of the transcript, a supplemental document submission from the parents (Parent‘s Ex. HH), and a letter from the Department‘s counsel (IHO Ex. I). The transcript was incomplete (see trans. 365). Despite repeated efforts, the hearing officer was unable to obtain the remainder of the transcript from the transcription service through the Impartial Hearing Office. The missing portion of the transcript would have included: (1) a portion of the Department‘s counsel‘s closing statement in which she argued that the parents‘ had acted inequitably when they decided prior to the May 2011 CSE meeting to enroll at for the Hearing Officer‘s
2011-2012 school year and were therefore not open to any program or placement offered by the Department; (2) the parties‘ request to extend the compliance date, and the hearing officer‘s granting of that request; and (3) the hearing officer‘s statement that she would prepare this written decision and the that the parties‘ had rights to appeal this decision. The record closed on October 4.
is old young woman who has attended various Department of Education general and special educational programs. Her parents enrolled her for grade in for the 2010-2011 school year. She continues to attend grade during the current school year. Her disability is classified, pursuant to the IDEA, as hearing impaired. This classification is not in dispute (trans. 11). In addition, the second amended hearing request does not challenge the public school placement proposed by the Department for for the 20112012 school year at (trans. 14-15). None of the parents‘ hearing requests challenge the proposed . The parents challenge the CSE‘s program recommendation of special education class in a (Department Ex. 3; trans. 11-12). As a result, this decision does not address the appropriateness of the proposed placement.
At the outset of the July 7 hearing date, the parents were advised of their rights (1) to amend the hearing request to include a challenge to the proposed placement and (2) to withdraw this proceeding and file a new hearing request with a challenge to the proposed placement. The parents were also informed of the scope of the hearing and the burdens of proof placed upon the Department if they elected to proceed without challenging the proposed placement (trans. 14-16). The parents stated that they wished to proceed with this hearing based upon their challenge to the IEP (and program recommendation therein) as set forth in the second amended hearing request (trans. 15-16, 18, 20).
The parties participated in a telephone conference with the hearing officer on July
11 (trans. 69-70). During that conference, the parents reiterated their decision to forgo amending the hearing request to include a challenge to the placement proposed by the Department for for the 2011-2012 school year (trans. 69-70). The parents also declined the opportunity to withdraw their hearing request and file a new hearing request including a challenge to the proposed placement (trans. 71-73). The School District‘s Case Hearing Officer‘s
CSE personnel evaluated in May 2009, when was a grade student (Department Ex. 22). attained the following percentile rank and grade equivalent scores on the : letter and work recognition, , .; reading comprehension, , .; math concepts and applications, , .; math computation , .; spelling, , .; and listening comprehension, , . On the , scored at the . on reading fluency.
was seen by an in March 2009 for a consultation (Department Ex. 21). The observed that ―presents with a disorder, a significant and Disorder is making it difficult for ] to follow directions in class. are impacting performance. can be interactive with . is contributory to .‖ The recommended and , resource room and/or one-to-one tutoring to address reading decoding and comprehension deficits, and continued use of the .
drafted a handwritten note dated May 10, 2010 recommending that ‘s hearing services be unit be removed because was ―performing within normal limits for all parameters‖ (Department Ex. 19 at p. 2).
had an at the in September 2010 (Department Ex. 2). The recommended medical testing due to ― ‖ and continued use of the in school.
s fall 2010 report prepared by her teachers at notes that ―as a student, she has difficulty for and has a for .‖ Furthermore, ―in keeping with the diagnosis of , shows in , , and ‖ (Department Ex. 18 at p. 1). staff developed detailed goals for in the areas of , , , , skills and outlined the methods to achieve these goals through an ―individualized structured program . . . designed to help compensate for progress‖ (Department Ex. 18 at p. 2). These methods included intensive work with (including uses of the method), syllabication, comprehension questions, guided reading, vocabulary work, chapter summaries, grammar study, structured writing, sequencing, checklists, learning and organizational skills.
The parent consented to the CSE‘s re-evaluation of and to grant the CSE access to her educational records (Department Ex. 16). CSE personnel conducted a classroom observation of in January 2011 (Department Ex. 15). During the observation period, class and was ― class discussions.‖ ―became somewhat ‖ when working with a .
Hearing Officer‘s
The CSE convened on May 9, 2011, to create an IEP for (Department Ex. 7). The meeting was attended by both parents, a who also served as the district representative, a special education teacher, an and Ms. (a ) (Department Ex. 7). The team recommended that ‘s disability be classified as and that she attend a special education class in a and receive the related services of hearing education services ( per week individually), ( per week in a group of three students) and individually). The IEP summarizes ―teacher observations‖ of ‘s academic performance: decoding at a level, reading comprehension at grade, math computation and problem-solving at a level, and written expression at the grade level (Department Ex. 7 at p. 3). The IEP notes that ‘s academic performance is ―variable due to attentional issues‖ and that ―her when a period for completion‖ (Department Ex. 7 at pp. 3, 4). Her academic management needs , , summaries, , charts calculation steps, tables and diagrams for multi-step math problems, and a calculator when on math problem-solving. The IEP states that has been diagnosed with in addition to her (Department Ex. 7 at p. 5).
The CSE‘s meeting minutes indicate that the parent informed the team that had made progress at and that the recommended ratio was ― ‖ for her. In addition, the minutes note that had been teased at her prior public school placement for using her unit. Her teachers reported that ―her for too long‖ (Department Ex. 10).
The IEP includes goals in the areas of decoding, spelling, reading fluency, reading comprehension, writing, math computation skills, math problem-solving skills, skills, study strategies, and skills, and vocabulary (Department Ex. 7 at pp. 6-17). The CSE provided the parents a Notice of Deferred Placement on May 9. The parents signed the form indicating that they agreed with the decision to defer placement until September 2011 and disagreed with the program recommendation (Department Ex. 8).
Dr. testified that he was a who has worked for the Department for 31 years as a school psychologist (trans. 86-87). He had reviewed evaluations of (trans. 95-96). Dr. noted that the results of the various evaluations were ―incorporated into the IEP‖ (trans. 100). He noted that diagnosis and difficulties were identified and described with respect to her overall functioning (trans. 101, 141). She experiences ―significant in her development of attack skills, which undoubtedly have impacted on her overall academic Hearing Officer‘s development. Her reading comprehension, and so she .‖ Furthermore, observed Dr. is ―intelligent and she consistently , although there‘s been significant between . . . skills and her skills‖ (trans. 107). The goals address her needs in the areas of reading comprehension, phonetic development, word tense skills, written language, expressive language, skills and skills (trans. 101, 120-121). The goals would be addressed by the special education teacher and the related service providers in the special class program (trans. 128-129, 131-136).
Dr. explained that s difficulties impacted her ability to problems (trans. 108). The evaluations indicate that her , attack and reading comprehension have improved and that ‖ between May 2010 and May 2011 (trans. 108-109, 111-112, 115-116, 152, 155-156).
Dr. opined that the academic management needs recommended by the CSE were appropriate for because they addressed her and and would assist her with her math and reading by ―facilitating her ability to focus on the important points of . . . particular material‖ (trans. 117-118). Dr. also opined that a special education teacher in a special class in school would be able to implement the management needs set forth on ‘s IEP (trans. 119). In addition, the IEP provides management needs to address ‘s in meeting the of new material (trans. 125). The related services of , also addressed ‘s needs (trans. 128).
Dr. concluded that, based upon the evaluations he reviewed, would have made progress on her IEP goals during the 2011-2012 school year (trans. 137). Furthermore, Dr. agreed with the CSE‘s recommendation of school for a ten month school year because, given ‘s strengths and weaknesses, she ―would quite possibly experience significant difficulties in a less restrictive environment‖ (trans. 137-138). However, if were to start to ―take off‖ , mainstreaming would be available to her in this community setting (trans. 138). In addition, there was no indication in the evaluations that would regress if she did not receive services during the summer months (trans. 161). The Parents‘ Case
A ― re-examination‖ of was conducted in January and February 2009 (Parents Ex. L). In 2006, the evaluator had diagnosed , and in , and (Parents Ex. L at p. 2). The 2009 testing found that continued to demonstrate deficits in Hearing Officer‘s reading and spelling. The evaluator opined that ‘s ― deficits make it to accurately material in a given situation, and effectively ‖ and that she was in several areas as a result of her ‖ (Parents Ex. L at p. 9). Specifically, ―displayed particular difficulty in , reading aloud by sounding them out, and encoding sound-symbol combinations‖ (id). The evaluator diagnosed , , fine and in , , (Parents Ex. L at p. 2).
In June 2009, the Department provided the parents with a P-1 letter entitling the parents to enroll at an approved non-public school because, the document stated, the Department was unable to provide the recommended special educational services to (Parents Exs. A, M).
received at from June 2009 to September 2010 (Parents Ex. AA). Tutors employed , including , to work on reading, spelling and writing skills (Parents Ex. AA). was assessed at in March 2009 and again in May 2011 (Parents Ex. F). In March 2009, results of the and the indicated that was functioning at a level in decoding, and grade level in spelling, and a grade level in written language skills. In March 2011, tested at the grade level in spelling, a grade level in reading, and an grade level in written language.[2]
was evaluated by a in June 2010 (Parents Ex. H). obtained the following scores on the measures administered by the pathologist: Expressive Vocabulary Test-II, ; Peabody Picture Vocabulary Test-IVA, ; CASL—non-literal language, , meaning from context, , inference, , ambiguous sentences ; CELF—semantic relationships, , sentence assembly, , all other subtests in the . The evaluator concluded that ―presents with at least a and disorder‖ and ― processes that underlie ‖ with ―limited single-item and vocabulary,‖ ― , . . . determining from context‖ (Parent‘s Ex. H at pp. 8, 9). He observed that ‘s expressive language was ― form and content, well-organized, , age appropriate difficulties‖ (id). The evaluator opined that , reading comprehension, writing and social skills will all be upon by the type of and that demonstrates‖ (Parents Ex. H at p. 9). He recommended that of , language based classroom with a student: teacher ratio in which she will receive modifications and accommodations (Parents Ex. H at pp. 9-10).
Hearing Officer‘s
was evaluated at in September 2010 (Parents Ex. G). The evaluator administered various subtests of the , and the parents and one of s teachers completed standardized questionnaires. The scores on these subtests indicated the following. ‘s verbal I.Q. measured , performance I and full-scale . On the , performed in the in reading. In addition, her range. The evaluator noted that had ―marked in awareness‖ as well as in word reading, working memory, verbal knowledge and expressive language skills (Parents Ex. G at p. 5). Both the examiner noted, and the parents‘ questionnaire reflected, concerns with respect to , and the evaluator recommended further evaluation for , in particular . The evaluator concluded that ―requires individual or small-group tutoring sessions to address her in reading and skills‖ (Parents Ex. G at p. 6).
By letter dated March 18, 2011, the parents requested that the CSE arrange for updated , and testing of (Parent‘s Ex. V). The parents provided various testing results to the CSE (Parent‘s Ex. V at p. 2).
‘s examination form from her doctor indicates and (Parents Ex. K). An evaluation of in May 2011 revealed some in her (Parents Ex. J). The recommended that in her classroom and possible use of an .
, the director of admissions at and a , testified that she had a bachelor‘s degree in elementary education and a master‘s degree as a reading specialist from ‘s (trans. 166). She described was a school enrolling approximately 200 students in the through grades (trans. 165, 174). According to Ms. , its ―mission is to facilitate the independence of students with through research-based methods and outreach‖ (trans. 165). Class size is ―typically‖ grouped by ― ‖—so students are in who have similar —and teachers are able to ―target skills‖ and remediate ―gaps‖ in students‘ learning (trans. 165-166). In addition, students have in the program to address the students‘ ―greatest obstacles,‖ in other words, the needs (trans. 166-167).
For the 2011-2012 school year, will be grouped with other students based upon the progress they have made as shown by 2011 standardized testing (trans. 169). ‘s class will focus on skills, ― ,‖ ― ,‖ and (trans. 169, 172). Ms. has not taught (trans. 167).
With respect to related services, ― ‖ and and then in ―the context of the classroom‖ (trans. 172). Ms. was unable to state whether would receive and Hearing Officer‘s therapy from a or would receive or or use her (trans. 173, 175-177). did not attend ‘s summer 2011 program (trans. 177).
Ms. r explained that the enrollment contract includes a clause that states that parents are not ―bound‖ to the contract if they accept a placement from the Department of Education (trans. 181-182).
, a teacher and literature and writing instructor employed by , testified that she is a certified teacher (trans. 2010). She stated that during the 2010-2011 school year, she was ‘s literature and writing teacher and taught her for a period‖ each day (trans. 194). The class students through January, and then an student joined the class (trans. 204). Ms. explained was placed in a class with students who had similar . The students in the class were at ‘s functioning level (trans. 204). In that class, Ms. taught literature, writing, decoding skills and spelling (trans. 197-198). Instruction and homework assignments were differentiated when necessary (trans. 206-207). Ms. provided guided instruction in decoding, with specific emphasis on as a strategy (trans. 212). She taught the strategies of taking margin notes and highlighting to improve comprehension. Ms. also employed graphic organizers, outlines, and reinforcement with (trans. 207-209). made progress . continues to need teacher support and assistance with writing, particularly with (trans. 198). During the school year, also improved in class participation and in the quality of her homework (trans. 199). did not use her FM unit in class (trans. 207). was able to maintain her attention in Ms. ‘s class (trans. 209).
, teacher for the 2010-2011 school year, testified that she is a certified reading teacher with a doctoral degree in English education with a specialty in teaching writing (trans. 278). Ms. met with period per day individually and works ―specifically on developing her areas of ‖ by reviewing evaluations and creating ―a curriculum that is tailored specifically to her ‖ (trans. 248, 291). Ms. employs methods and a ―very clear, system‖ that ―is most successful with because of their very specific in l ‖ (trans. 249). She stated that ―research points‖ to a as ―very successful‖ with (trans. 250). Ms. also uses memorization with because find it ― . . . to . They really need to have a relationship taught to them‖ (trans. 249). Ms. opined that who ―needs . . . an enormous amount of . . . to retain ‖ (trans. 251). Hearing Officer‘s
Ms. stated that has ―a difficult time organizing her writing on the conceptual level‖ and has trouble discerning ― ‖ from ― ‖ when reading (trans. 260). Her writing ―is full of that she doesn‘t ‖ (trans. 261). Ms. opined that these are ―a combination of the and the ‖ (trans. 261). As a result, Ms. has been hard time figuring out the difference between when she (trans. 263-264). Ms. on ―because her lack of specificity in is related to her lack ‖ (trans. 290).
Ms. testified that has made progress in the in context (as distinguished from individual word reading) (trans. 267-268). She opined that ―worked‖ for because she is grouped with students of levels and is taught with a (trans. 276). Ms. communicated weekly with the parents by email concerning progress (trans. 309; Parents Ex. HH).
s report card for the end of the 2010-2011 reflects the following final grades: literature, -; writing -; math, -; history, ; science (chemistry), ; focus, ; art, ; and physical education, - (Parents Ex. U). The final report drafted by her teachers outlines her progress during the school year (Parents Ex. T). Ms. , the teacher, described in detail the improvements had made in and and stated that she was becoming more independent. also demonstrated improved and class, in which she was able to about increasingly . In math, worked on and improved her execution of math computations and understanding of algebraic concepts. In chemistry, learned the material and increased her skills. In history, also improved her , skills in addition to grasping the historical material and concepts covered in the class. Her teachers described how they worked with her to address her , issues, awareness and vocabulary , and math .
personnel administered standardized testing to in June 2011 (Parents Ex. T at pp. 9-10). On the , attained the following grade equivalent scores: listening comprehension, ; oral expression, ; word reading, pseudoword decoding, , reading comprehension, ; oral reading fluency, ; sentence composition, ; essay composition, ; spelling, math problem-solving, numerical operations, and math fluency – On the Gray Test-IV, attained the following grade equivalent scores: passage rate, ; passage accuracy, ; fluency, ; and comprehension, . On the Reading Test, scored at the equivalent in both vocabulary and comprehension.
Hearing Officer‘s
tuition for the 2011-2012 school year is $49,000.00 (Parents Ex. B).
The parent testified that had made more progress during one year at than she had during all her years at Department placements and that did not learn when taught through ―traditional‖ methods (trans. 318-319). was diagnosed with when she was in (trans. 327). The parent explained that had unique needs and challenges as a result of her a and was entitled to an education tailored to her profile (trans. 322). For the first time in her school career, ‘s needs are met at through individualized instruction specific to her (trans. 325). The parent explained that a teacher is not a ― reading specialist‖ that requires to learn (trans. 326).
The parents have not paid any tuition to for the 2011-2012 school year (trans. 334-335). The parent stated that she had kept ―an open mind‖ about any recommendations the CSE might make, but was not considering any programs for other than (trans. 339). In the event that did not receive ―funding,‖ the parent ―wanted to at least try to find another school that had a population‖ but was unable to locate one other than another non-public school (trans. 349-350).
Findings of Fact and Decision
A board of education may be required to pay for educational 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 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 living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Hearing Officer‘s
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, 206207 (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 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 Hearing Officer‘s 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 set forth information from the various assessments, described in her current levels of performance and identified her special education needs. The IEP included goals in ‘s areas of need—decoding, spelling, reading fluency, reading comprehension, writing, math computation skills, math problem-solving skills, attentional skills, study strategies, receptive and expressive language skills, and vocabulary. These goals are clearly appropriate for given her undisputed areas of academic and management needs. Dr. described in detail the evaluations in the CSE‘s possession at the time of the creation of the IEP and explained at length how the needs revealed in those evaluations would be addressed through the IEP.
The next step is to examine the IEP to determine whether it sets forth a program that sufficiently addresses ‘s identified special educational needs. The recommended special class program in a school provides special education teacher support sufficient to address ‘s academic and management needs and to enable her to make meaningful educational progress. Dr. testified about the manner in which IEP would be implemented by the teachers and related service providers in the program. A greater
Hearing Officer‘s
level of instruction might be desired by the parents and might optimize ‘s progress. However, this level of support is not required by the IDEA.[3]
Moreover, the School District complied with the IDEA‘s mandate that it provide special education services in the least restrictive environment. The IDEA requires that students with disabilities be educated ―to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. §§300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. §§200.1(cc), 200.6(a)(1); P. v. Newington Board of Education, 546 F. 3d 111, 114 (2d Cir. 2007). The Second Circuit has set forth a two-pronged test for determining whether an IEP places a student in the least restrictive environment: (1) whether education in the general education classroom, with the use of supplemental aids and services, can be achieved satisfactorily for the student; and, if not, then (2) whether the school has mainstreamed the student to the maximum extent appropriate. P. v. Newington Board of Education, 546
F. 3d at 119-120. The CSE recommended that be educated with in a self-contained special education class in a general education school in which she would be in contact with general education students and participate in the mainstream environment.
The evidence presented at the hearing establishes that the Department offered a free appropriate public education for the 2010-2011 school year. As a result, the Department prevails with respect to the first prong of the Burlington/Carter analysis.
II. The Appropriateness of the Winston Preparatory School The parents bear the burden of proof concerning the appropriateness of the Winston Prep 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 parents must show that the educational services provided at Winston Prep 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.
Hearing Officer‘s
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 supports a finding that the program at was appropriate for . staff addressed ‘s needs for explicit instruction in language, reading fluency, reading comprehension and writing. also used strategies that worked with , such as graphic organizers, margin notes, chapter summaries, repetition of material and review and editing of written work. According to staff at , has made progress during the last school year. It is reasonable to conclude, based upon that progress and upon the continuation of the staff‘s instructional methodologies through the 2011-2012 school year, that would continue to make progress. As a result, the parents do prevail on the second Burlington/Carter criterion.
The parents did not present evidence that they had enrolled in an educational program for summer 2011. As a result, there are no grounds to grant payment for any such program.
III. Equitable Considerations
With respect to the third Burlington criterion, whether equitable considerations support the parents‘ claims, the evidence establishes that the parents cooperated with the Hearing Officer‘s
CSE by providing evaluations to the CSE, attending the CSE meeting, and communicating their concerns to the CSE.
However, the Department raised a compelling argument that the parents had decided, prior to the May 2011 CSE meeting, to continue ‘s enrollment at for the 2011-2012 school year and had determined not to accept any Department of Education program for . The evidence demonstrates the accuracy of this position. The parents made clear that they wished to continue at for the 2011-2012 school year. Furthermore, the evidence shows that the parents were not open to accepting a Department of Education placement—they believed that only at would ‘s needs be addressed and did not wish to consider a Department placement.
Therefore, for all the above reasons, it is ordered that:
The parents‘ requests for relief are denied. Dated: October 6, 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
Hearing Officer‘s
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.
Hearing Officer‘s
DOCUMENTATION ENTERED INTO THE RECORD
PARENT DESCRIPTION
A P1-R Letter, 6-25-09, 1 page B 2011/2012 Acceptance Letter, 5-11-11, 1 page C August Summer Enrichment, 8-1-11, 2 pages D Teachers' Credentials, 6-24-11, 8 pages E AT letter, 5-16-11, 2 pages F Dr 2009, 2011 Assessments, 5-24-11, 3 pages G Testing, 9-29-10, 6 pages H Language Evaluation, 6-4-10, 11 pages I Testing 2010 and 2011, 5-9-11, 8 pages J Evaluation, 5-24-11, 2 pages K Form, 6-8-11, 1 page L Re-exam, 1-29-09, 11 pages M 2009 Findings of Fact and Decision, 3-3-09, 13 pages N 2010 Findings of Fact and Decision, 6-23-10, 14 pages O 2009-2010 School Work and Test Scores, 11-2-09, 13 pages P 2010-2011 School Work and Test Scores, 1-26-11, 17 pages Q 2011 Information, 5-6-11, 2 pages R Parents' Statement, 7-7-11, 3 pages T Teachers' Reports, 7-3-11, 10 pages U Report Card, 7-3-11, 1 page V Letter from Parents, 3-18-11, 2 Pages W Email Correspondence, 3-23-11, 2 Pages AA The Credentials and Letter from Dr. , 8-10-11 HH Emails from and to Parents, 9/10 – 6/11, 39 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 Due Process Complaint, 5-11-11, 1 page 2 Amended Due Process Complaint, 5-13-11, 1 page 3 Second Amended Due Process Complaint, 5-24-11, 5 pages 4 Due process Response, 6-1-11, 4 pages
Hearing Officer‘s
5 Department Motion to Dismiss In Case # , 5-3-11, 15 pages 6 Parents' Withdrawal of , 3-4-11, 1 page 7 IEP for 2011-2012, 5-9-11, 24 pages 8 Revised Notice of Recommended Deferred Placement, 5-11-11, 3 Pages 9 Notice of Recommended Deferred Placement, 5-9-11, 1 Page 10 Minutes of IEP Meeting, 3 Pages 11 Level 1 Review, Parent, 4-28-11, 1 Page 12 Level 1 Interview, Student, 4-8-11, 1 Page 13 Request for Evaluation, 4-26-11, 1 Page 14 Notice of IEP Meeting, 4-11-11, 1 Page 15 Classroom Observation, 1-19-11, 2 Pages 16 Consent for Evaluations and Stipulation, 1-5-11, 2 Pages 17 Request for Consent for Evaluation, 12-21-10, 1 Page 18 Fall 2010 School Report, 10 Pages 19 Letter from Hearing Services Provider, 5-110-10, 2 Pages 20 Evaluation Report, 9-10-10, 2 Pages 21 Consultation Report, 5/9/09, 2 Pages 22 Confidential Education Report, May 2009, 5 Pages 23 , 2-10-09, 3 Pages 24 IEP for 2010/2011, 5-11-10, 16 Pages
IMPARTIAL HEARING OFFICER DESCRIPTION
I. Letter from DOE, 9/20/11, 2 pages
Footnotes
[1] The parents had requested an impartial hearing in January 2011, which they subsequently withdrew (Department Ex. 6). The Department submitted in evidence in this proceeding a motion to dismiss it had filed in that prior proceeding (Department Ex. 5).
[2] The parents sought to have Dr. testify. However, Dr. was not available on the scheduled hearing dates. Over the Department‘s objection, the parents were offered the opportunity to continue the hearing on a date that Dr. was available (trans. 217-224, 315). However, the parents chose to forego her testimony.
[3] Since the parents elected not to challenged the placement proposed for by the Department for the 2011- 2012 school year, this decision does not address the appropriateness of that placement or the implementation of the IEP at that placement.