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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
X In The Matter Of The Parents and Guardians of [], Petitioner, - against - M. Lazan, I.H.O. [],
Respondent. [] X
This matter came before me on the parents’ request dated June 27, 2011. The parents’ request alleged FAPE violations for 2011-2012 and sought a finding that the District provide a 1:1 aide throughout the school day, as well as additional services in compensation for the failure to implement the 2010-2011 IEP from January 2011 through April, 2011.
After the matter was not resolved, the parties and the hearing officer conducted a pre-hearing conference on August 9, 2011. The parties indicated that there was a dispute relating to pendency placement. As a result, a pendency hearing was set for August 26, 2011. The parties submitted briefs and evidence in connection to the pendency issues, which were resolved by a hearing officer’s decision dated September 26, 2011. Two hearing dates followed, on October 3 and 4, 2011. The parties then submitted briefs to the hearing officer on November 15, 2011.
Three extensions of the timelines were sought by the parties. First, on September 12, the parties jointly moved to extend the time because of the pendency issues and witness availability. I assessed the appropriateness of the extension pursuant to the regulations in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this extension to October 11, 2011. Second, the parties jointly moved to extend the timelines on October 4, 2011. The reasons were to review the transcripts, to write briefs, and to allow the hearing officer time to write a decision. I assessed the appropriateness of the extension pursuant to the regulations in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this extension to November 10, 2011. A third extension was requested for the same reasons, i.e., to review the transcripts, write briefs, and to allow the hearing officer time to write a decision. I assessed the appropriateness of the extension pursuant to the regulations in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this extension to December 9, 2011. The record close date was set at November 25, 2011; this record close date was reset to November 15, 2011 because that is the date that the hearing officer received the briefs from the parties. Notices of the extensions are annexed as IHO Exhibit 4.
PRELIMINARY STATEMENT
This is a case involving []. For the 2010-2011 school year, the child’s IEP included []. For the 2011-2012 school year, the child’s IEP included []. The hearing proceeded on the parents’ objections to the [].
TESTIMONY AND EVIDENCE
Testimony at the pendency hearing.
[], a special education teacher, was the teacher of the student’s [] in 2010-2011. (12) She testified that the classroom consists of []. (12) [] was in her classroom for the 2010-2011 school year. (15) There were []. (20) The student is []. (16)
At the end of January or beginning of February, 2011, his [] left. (17) []. (17-18) []. (18) []. (20) []. (21) Then there would be rest time, then he would work on individual IEP goals. (21)
After [] left, [] would do the same functions, []. (17-20) [] would []. (21) []. (21) []. (21)
[]. (19) Sometimes it was [], but later in the afternoon it was []. (19) At 2:30, both [] and [] would leave. (21) []. (21)
When there was small group instruction, she would be with him. (24) There would be two other children []. (27) The objective would be socialization. (29) At the end of the day, [] would be with him. (24) If [] left for lunch or a break, []. (24) All of the staff were trained to work with him. (24-25)
[], a paraprofessional, testified that []. (32-33) []. (33) []. (35)
She is also a classroom aide, so she had things to do, such as copying and “things like that.” (36) []. (36) She did this more so than [], because [] didn’t have to do those things. (36)
[] usually had to feed him his lunch, she gave [] snack. (36) She was sort of the point person for []. (37) []. (43) []. (43) []. (53) []. (53)
[], a substitute paraprofessional, testified that after [] left, the same service was provided to him. (60-61) []. (61)
[], an aide in []’s room, indicated that [] was the [] for []. and that [] would fill in during a break or lunch. (64) When [] left, [] took over for [] and the rest did the work that [] was doing. (64)
[], Director of Pupil Services at the District, indicated that the District eliminated one-to-one aide service and replaced that with an emphasis on “frequency, duration and location.” (72) There was a concern because one-to-one paraprofessionals would resist being instructed to fill in with other students during down time. (73) As a result, they switched the policy of the District from “one paraprofessional” to possibly providing several paraprofessionals to the same child. (73) [] would always have someone with him. (74) There is no difference between one-on-one and if you said six hours of support. (74)
The difference between the IEPs is that, in a small group setting, []. (76-77) They want the paraprofessionals to be trained on all students in the class, not just one student. (82)
One of the paraprofessionals is to be assigned to []. (88) It might not be the same paraprofessional all the time. (88) []. (89)
In the past, when a paraprofessional would stay in the room after an assigned student would go to a related service, that paraprofessional would still be in the room but would resist work. (89) The paraprofessional would not always go to related services. (90)
The aides can be working with other students while the teacher is providing the small group instruction. (110)
[] testified that [] is going into the []. (98) []. (99) []. (99)
For the April, 2010 CSE, []. (100)
She has been at school when []. (103)
After [] left, []. (104) []. (104)
She was told that the District would be []. (105) []. (105) She disagreed with this proposal. (106)
2. Testimony on October 3 and 4, 2011.
[] testified once more on October 3, 2011. She indicated that []. (31) There are []. (31)
Last year, there was growth in terms of []. (32)
He always had []. (33) The more people that came to him, the more he progressed []. (33) []. (39)
He progressed on his writing goal, a goal relating to []. (33-37)
It is up to the related services provider as to whether []. (45) Generally the []. (46) During that time, []. (46) []. (47)
There were []. (47-48) When []. (49)
It is too restrictive to have []. (50)
He enjoyed having different adults coming close to him. (51)
When she did small group sessions, the student was literally []. (55) The goal was socialization. (55)
You need experience working with him to []. (65)
The other children in the class were []. (67)
The teacher would introduce the goal, which would then be repeated through the paraprofessional. (73-74) This would be repeated []. (74) When the teacher would work with him, it could be in a small group. (74)
When she was working with another child in small group instruction, this was []. (79) With []. (81-82)
[] also testified again on October 3. She indicated that [].(89) She got to know him more after [] left. (91) Toward the end of the year he became more vocal. (93)
[], the CPSE chairperson, indicated that the student is []. (99) At the meeting last year in April, they decided to write the document to contain []. (99) []. (101) They look for any signs of independence in a child. (101-103) This was after []. (100-101)
The student would have a kind []. (105) Data was collected. (105-106)
The classroom is a []. (108)
Service providers showed progress for the student at this time. (109)
They were concerned about the student’s []. (112)
The health care plan []. (113) This is the predominant concern. (113) Everyone in the classroom has been trained []. (114) If a []. (114) []. (116)
[], a speech and language services provider of the student, indicated that the student was making gradual progress []. (123-127) []. (128) He has not been trained formally on how to recognize []. (129) [] to therapy. (129) []. (129) []. (131-132) []. (132)
[] is an aide in [], a [] aide. (134) []. (136) []. (139) []. (140) []. (143) []. (143) []. (143) []. (145)
Previous to the pendency order, []. (146) She would be with him for a few hours, and then another aide would be with him for a few hours, and then a third aide would be with him in the afternoon when he was on break. (146)
[], the student’s current special education teacher, indicated that the student is []. (155) They are working on identifying pictures, making sounds when spoken to. (155) Progress is measured by []. (156)
They are all comfortable working with the student. (159) She kind of likes the scenario in her room of [] with the other aides playing a minor role. (160)
For small group instruction, they have students around a table and []. (162) There are up to []. (162) He is with []. (163) []. (164)
They had meetings with the other teachers and with the mom to go over []. (165) The []. (166) [] was already familiar with him. (167) They all discussed it as a group before school, what to look for, the []. (167)
[], the student’s school [], []. (176-177) []. (177) []. (178) []. (178) She has gone over the [] issues with the teachers, paraprofessionals, service providers. (179)
Children with one-on-one support tend to excel. (183-184)
[] testified again on October 3. He indicated that they have developed a policy of using “frequency, location and duration” with respect to paraprofessionals. (190-192) Each student should get the service that they needed. (192) At the CSE, they wanted multiple []. (194-195) They also discussed []. (196-197) They also wanted to foster []. (198-199)
He has observed the student for 30 minutes. (201)
He indicated that he never stated that the never told the parent that there were too many paras in the District. (224)
The parent testified again that the child has []. (203) He is []. (203) He has []. (204)
She was told the District would no longer provide 1-1 aides for its students. (207) [] indicated that the State was looking at the District and noticing that it had too many paraprofessionals. (207) In turn, they were not having any more 1-1 aides. (207)
[]. (208) Educationally,[]. (208) []. (209)
[]. (209) []. (209) []. (210)
[]. (210) []. (210) []. (210)
A variety of people take care of him at home. (212-214)
A [] has given her a script for []. (220) The longer the []. (220)
When he has a []. (221) If it slows down by three minutes, it will end by five. (221)
He typically has []. (222) []. (222) []. (222) Evidence.
[] IEP reflecting the meeting date of []. (Exh. 1) []. (Exh. 2, 3)
The child is [] per the statement of the []. (Exh. 14)
The [] indicated that the student needs []. (Exh. 15)
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
1. “Meaningful Participation” claims.
In the parents’ brief and also in their opening statement, they allege that they were denied an opportunity to meaningfully participate in the decision-making process. The Complaint also alleges that the parents were denied an opportunity to participate in the decision-making process. The District did not object to the parent raising these claims. Application of a Child with a Disability, Appeal No. 10-004 (where Complaint did not include predetermination claims but both parties elicited testimony on this issue and no objections where raised, SRO considered questions relating to predetermination); Application of a Student with a Disability, Appeal No. 11-065 (District did not object to compensatory services claim not explicitly indicated in Complaint); see also M.H. v. NYC Department of Education, 712 F. Supp.2d 125 (S.D.N.Y. 2010)(focusing on District’s ability to respond to claims).
A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The parents contend that the District did not base the 2011-2012 IEP on the student’s needs. The parents pointed to testimony of [] at the pendency hearing to the effect that the District eliminated “ratios” from IEPs in the District in favor of IEPs that indicated “frequency, duration, and location.”
The record reveals that the District has been having concerns about the paraprofessionals in the District generally. As [] stated:
one of the concerns, just as an example, was that we had a paraprofessional working with the student, and this student goes to a related service, and then we would ask that paraprofessional to help the teacher and come to work over here, and the paraprofessional would say “No, I’m a one-on-one. I’m just with this student.” And we said “No, we need you to actually come over here and help in that classroom because they were, quote, a one-to-one. Transcript at 72-73.
[] explained that he had spoken to the head of the paraprofessional unit about the problem of 1:1 paraprofessionals not helping out during time away from the child. Thereafter, [] decided not to allow “1:1 paraprofessionals” on IEPs. As he described: “(w)e determined that we didn’t want to have a ratio any longer. . .; “when we get to their meetings, we would eliminate the one-to-one.” 8/26/11 Transcript at 72.
[] also indicated that he wanted to make sure that students get the services that they need. He indicated that “we asked” CSEs to “look at the needs of the student and determine what the frequency, duration and location was” and “make sure that the student gets that.” He indicated that “it may be one para, it may be various paras, but make sure the student gets the service.” Transcript at 73. Throughout, the District indicated that the student would receive the same services under the 2011-2012 IEP as he received during the 2010-2011 IEP.
Courts require that Districts have an “open mind” so that parents may actively and meaningfully participate in the IEP meetings. T.P. and S.P. v. Mamaroneck Union Free School Dist., 554 F.3d 247 (2d Cir. 2009). Citing the Sixth Circuit case of Deal v. Hamilton County Board of Educ., 392 F.3d 840 (6th Cir. 2004), the Circuit explained that a key to this inquiry is determinating whether the “powers that be” have indicated that a particular program cannot be implemented in a particular District. See also J.G. v. Kiryas Joel Union Free School Dist., 777 F. Supp.2d 606 (S.D.N.Y. 2011). Policies of refusing to consider certain programs may be a deemed a violation of the IDEA. Kalliope R. v. New York State Department of Educ., 54 IDELR 253 (E.D.N.Y. 2010)(12:2:2 classes; citing Deal v. Hamilton County Board of Educ., 392 F.3d 840 (6th Cir. 2004)(District refused to consider one-to-one ABA therapy for student); Application of a Student with a Disability, Appeal No.08-035; Compare E.G. and M.G. v. City School Dist. Of New Rochelle, 606 F. Supp.2d 384 (S.D.N.Y. 2009)(finding no “predetermination” because no “policy” implemented).
While the District suggests that the [] will have the same duties as the [], the record does not quite support this contention. The 2011-2012 IEP indicates that [] should assist the student in []. However, the IEP clearly indicates that the []. In contrast, there is no such limitation on the 2010- 2011 IEP. Indeed, there is testimony that [] were with the student during [] for 2010-2011.
I note that the parents specifically requested that a [] accompany the student during the entirety of the school day at the CSE meeting. The parents were particularly concerned with the student being instructed in []. The District did not pause to consider this position at the review. Instead, at the review, Mr. denied this request and told the parents: “we as a District can make that decision and that’s the decision that I made.” The parents were also told “it’s a District decision on whether to write that.” (Exh. 4)
There is no testimony or evidence in the record to clarify these statements. There is certainly nothing in the record to rebut the inference that the District will not provide any students with 1:1 aides during small group instruction and during related services. I find that the District enacted a policy of refusing to provide students with individual aide services throughout the entire school day, including during small group instruction and related services. Accordingly, the District did not have an “open mind” here, and the parents did not “meaningfully participate” in the decision-making process for the 2011-2012 school year. In sum, the District significantly impeded the parents’ ability to participate in the decision-making process. Compare NY State Review Officer Dec. No.11-051 (finding there was meaningful ability to participate, in part relying on testimony establishing that there was no policy against home-based services in District).
2. Parents’ Request to Amend IEP.
In regard to the program recommended by the District over the parents’ objection, the parents indicate that the child requires a [], including during related services sessions and in small group instruction.
Given the extent of the child’s special education needs -- including [] -- the parents are understandably concerned with [].
While the IEP does permit the [], the record reveals that the practice in the classroom is to []. The question here is whether the District’s proposed change to the student’s placement is appropriate, i.e., whether [].
In regard to the parents’ claim that the student requires [] during small group instruction, the record indicates that the teacher []. The record indicates that the teacher []. The record also indicates that []. The parents have called no educators, service providers, or experts to support their claims that the student must have []. Nor do the parents present any report from an educator, service providers, medical professional or expert to the effect that the student requires []. I agree with the District that it is appropriate [].
In regard to the parents’ claim that the student requires [] during related services, the testimony in the record suggests that some of the related services providers have been providing the student with therapies without []. The therapies have proceeded without incident, and with the student making progress on goals. The record also indicates that the related services providers have training to recognize []. The parents have called no educators, service providers, medical professionals or experts to support their claims that the student must have an [] during all related services. Nor do the parents present any report from an educator, service providers, medical professional or expert to the effect that the student requires a [] during related services. While there is testimony that [] were previously provided with an aide, there is nothing in the record to suggest that [] is materially necessary for the student to benefit from []. As a result, I agree with the District that the program in the April, 2011 IEP is appropriate for the student. As a result, the parents’ request to amend the IEP is denied.
3. Additional Services.
The parents’ Complaint requests additional services because the District allegedly failed to implement the child’s IEP from January, 2011 through April, 2011.
In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish that the District failed to implement substantial or significant provisions of the IEP. Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007) (student missed speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue).
Here, the 2010-2011 IEP indicates that the student was to receive []. The record shows that the District []. However, the record also reflects that [], including during small group instruction. Under the circumstances, I do not believe this is an appropriate case for additional services. Application of a Student with a Disability, Appeal No. 07-109 (additional services claim generally requires finding of FAPE denial).
ORDER
As a result of the foregoing, I find the following:
(1) The District is determined to have denied the parents are FAPE for 2011-2012 by significantly impeding the parents’ participation in decision making at the April, 2011 IEP meeting;
(2) The parents’ other requests for findings and relief are denied.
DATED: Brooklyn, NY
November 29, 2011
MICHAEL LAZAN, I.H.O.