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FINDINGS OF FACT AND DECISION
Case Number: Student‘s Name: Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: August 1, 2011
September 6, 2011
October 13, 2011
October 31, 2011
November 21, 2011 Actual Record Close Date: December 9, 2011 Hearing Officer: Hearing Officer‘s
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON September 6, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2011
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2011
Attorney — Student
Parents
Director of Placement D- — Student
Director Upper School, — Student
School — Student
Clinical Director of — Student
Attorney — DOE
Special Education Teacher, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2011
Hearing Officer‘s
Attorney — Student
Parents
Service Provider — Student
Head Teacher — Student
Attorney — DOE
School Psychologist — DOE
Hearing Officer‘s — DOE
On July 1, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (―
IDEA‖), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing (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 2011-2012 school year and (2) to seek reimbursement for tuition at the , a non-public special education school, and up to 20 hours per week of services.1 A pendency hearing was conducted on August 1, and an Order on Pendency was issued on August 2.
A pre-hearing conference was conducted on September 6. The hearing on the merits commenced on October 13 and was continued on October 31 and November 21. 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 September 28 and October 28 at the Department‘s request in order for its witnesses to be available to testify due to testifying in other proceedings, mandatory training obligations at their schools and health problems. The compliance date was extended to November 27 at the parent‘s request because parent‘s counsel experienced a death in his family and to December 27 in order for the Department‘s final witness to re-arrange her school duty schedule to be available to testify and for ‘s teacher at (a non-party witness) to arrange for class coverage while he testified (see IHO Ex. I [notice to parties with explanations re: extension]). The record closed on December 9 upon the receipt by the hearing officer of the transcript.
Background
is a year-old young man who has been diagnosed with and has experienced significant and , including repeated episodes of . He has a history of , . ‘s disability is classified, for the purposes of the IDEA, as . This classification is not in dispute. He has attended the School since July 2010. The School District‘s Case
This request was reduced during the hearing to twelve hours per week (trans. 479-480). Hearing Officer‘s The CSE convened on April 29, 2011 and prepared an IEP for (Parent Ex. D). The meeting was attended by , a district representative; a parent member; , a Department special education teacher; Dr. , director of the school; pathologist, herapist, behavior analyst and teacher from ; and the parent. The CSE recommended that attend a special class in a specialized school for a 12 month school year with a ―‖ and receive the related services of (five 45 minute sessions per week individually) and therapy (four 45 minute sessions per week individually). The IEP states, based on teacher estimates, that was functioning on a level in reading, math and writing (Parent Ex. D at p. 3).
The IEP lists academic management needs of : highly structured, predictable learning environment; consistent schedule; ; tasks broken down into small steps; units; repetition, review, and ; opportunities to generalize skills across a variety of contexts; instruction; frequent ; and frequent breaks from tasks and group settings (Parent Ex. D at pp. 3-4). with instruction and requires ‖ as well as positive , verbal and , and constant updating of his (Parent Ex. D at p. 5).
The IEP includes goals and objectives in the areas of , gross , , , and skills, articulation skills, skills, skills and .
The last page of the IEP is titled ― ‖ (Parent Ex. D at p. 21). The plan targets ― non contextual and ‖ with ― clear expectations for performance and duration of tasks,‖ reinforcers, updating preferences ― regularly,‖ a visual schedule, alternative breaks.
The CSE had available to it at the meeting the Individual Education Plan prepared by personnel for for the 2010-2011 school year (Department Ex. 8) as well as ‘s therapy goals (Department Ex. 9) and goals (Department Ex. 13).
The CSE meeting minutes reflect that the parent informed the CSE that needs ― intensive behavioral support to keep down‖ and that ― was able to decrease incident[s] of ] behaviors quickly and parent believed that program [for ] must have level of skill which can support ‘s intense behavioral issues and self-injurious tendency‖ (Parent Ex. R at p. 2). The parent also wanted home services for and informed the CSE of the family‘s new address.
Hearing Officer‘s , a certified school psychologist employed by the Department of Education, testified that she had been assigned to the CSE and chaired CSE meetings (trans. 484). She participated in ‘s April 2011 CSE meeting (trans. 485). At the meeting, the team reviewed reports submitted by and asked ‘s teacher for an update on ‘s functioning (trans. 487). Ms. reviewed the management needs set forth on the IEP and noted that the team recommended that have a ― structured predictable learning environment because [he] responded best to routine, especially . . . when he knew exactly what was going to come next each day‖ (trans. 488). She explained that the listed management needs would ― ‖—these needs included , repetition and review, functional application of learned material, opportunities to generalize, and the paraprofessional ― to help keep focused an on task, to help his behaviors that may interfere‖ with learning (trans. 491492). She also observed that the must be ― constantly updated‖ because may increase (trans. 493, 502-503).
Ms. explained that the team recommended the program for because he needed a small class setting with a full time special education teacher and additional adult support in the classroom and a twelve month school year (trans. 495). The team developed the on the last page of the IEP by looking at the plan and the BIP included in ‘s previous IEP and by discussing with the personnel at the meeting what was manifesting (trans. 497-498). Ms. testified that an FBA of was not conducted (trans. 504).
‘s progress reports from the for the period from February through June 2010 show that was working on programs addressing functional math and handwriting, working independently, activities of daily living (tooth brushing, hand washing, shoe tying), and reducing interfering behaviors , ) (Department Exs. 15, 16, 17). Mr. , ‘s after-school therapist, prepared a report in August 2010 (Department Ex. 18). He described ‘s progress in the areas of activities of daily living, receptive and expressive language, reading and spelling. Mr. noted ‘s history of and and stated that these ― episodes have been greatly reduced through interventions‖ (Department Ex. 18 at p. 2). was evaluated by the , whose personnel prepared and ―
Educational Programming Review‖ based upon observations of in educational settings (Department
Hearing Officer‘s
Ex. 19). The evaluator opined that these observations supported ― continuation of for ‖ and continuation of ― a comprehensive, -based educational program‖ (Department Ex. 19 at p. 6).
By fax dated and sent on April 26, 2011, the parent informed the CSE that the family had moved and provided the new address (Department Ex. 22).
By letter dated and received by the CSE on June 15, 2011, the parent informed the CSE that he had not received the IEP nor a placement for (Department Ex. 24). The parent also stated that ― unless the DOE offers an appropriate placement,‖ the parent would enroll in the School and seek reimbursement for tuition and 12 hours per week of home-based services.
The Department issued a Final Notice of Recommendation dated June 14 placing at P. (Parent Ex. F). , a certified general and special education teacher employed by the Department at , testified that she taught a class and had training in (trans. 117). If had attended in July 2011, she would have been his teacher (trans. 119). She did not know whether she would have continued to be his teacher as of September 2011 (trans. 138). There were students in her class in July and August, ranging in age from , with whom would have been functionally grouped (trans. 119121, 184-185). would have been one of the students in the class (trans. 150). There were four adults in the classroom, Ms. , two classroom and one individual (trans. 125). The class composition changed in September, and Ms. was teaching in a different classroom with all new students (trans. 187, 197).[2]
Ms. used the methodology, including individual schedules and positive reinforcements, in her class. She added that she ― chunk[ed]‖ material to students‘ levels and provided opportunities to generalize to the community the skills they learned in class (trans. 122). She took data daily data on the students, analyzed it weekly, and made adjustments if necessary. Ms. used , of material, corners, , a system, one-to-one support and FBAs and BIPs (trans. 124, 128-129).
Hearing Officer‘s
Ms. grouped a student with with a student with more ― so they can help each other,‖ for example, as one student reads, the can point to the pictures and use the for him‖ (trans. 127-128).
Ms. reviewed ‘s IEP goals and described how she would have addressed each of the goals in her class (trans. 129-135). Ms. reviewed the included in the IEP and stated that the daily schedule she would create for would reduce his and that he would receive reinforcement and breaks in the classroom (trans. 135-136). The class worked on skills and took weekly trips to the community around the school (trans. 211212). Students were provided with instruction from Ms. and from the supervised by her (trans. 147).
None of the students in the class manifested , and Ms. had never taught a student with significant (trans. 150). When she was a teaching assistant, she once worked with a student with (trans. 151). Ms. ‘s training in dealing with such behaviors has consisted of ― tips‖ on how to ―‖ and instructions to call the dean and the security guard to ― take the student to an isolated space where he won‘t be able to the ‖ (trans. 151-152, 155). The ― space‖ is a classroom with no furniture (trans. 153). Ms. would first try with about his feelings to try to ― ― down‖ before calling for assistance from the dean and the ‖ (trans. 160-161, 164). ‘s does not call for ; Ms. would consider whether to ―upd ate‖ the (trans. 162-163).
Related services were provided on both a basis depending on each child‘s IEP mandates (trans. 126). None of the students in the class received as and or as mandated by ‘s IEP (trans. 173). All the students in the class, however, are receiving all the related services listed on their IEPs at (trans. 176).
Parent training is provided at in the form of group meetings and work in the classroom with individual parents on, for example, (trans. 137). The Parent‘s Case The parent testified that attended Department of Education placements during his preschool and elementary school years at the , the for (trans. 456). During the 2009-2010 school year, attended the in for three hours in the morning. The parent then drove to the in for two hours in the afternoon (trans. 446). would Hearing Officer‘s arrive home at about 2:30 to 3:00 and begin his program. When enrolled in in July 2010, personnel at the worked with personnel at extensively to put together a transition plan for (trans. 447). The parent explained that consistency is very important for and ― serious behavioral problems‖ have arisen when he has moved from school to school in the past—―
[t]hat‘s when his and his really spiked for him‖ (trans. 448).
Mr. provides the parent with training ―
constantly‖ because the parent attends the home therapy sessions and Mr. answers all his questions about teaching (trans. 449). Most recently, Mr. taught how to take a and the parent how to support the teaching process for . The parent testified that had to be broken down to many steps in order to teach . The parent would not have been able to teach on his own. can now take a (trans.449).
The parent stated that ‘s are now ―
pretty much under control‖ and he is able to learn and go ― out in the community‖ (trans. 471). The parent attributes these improvements to the reduction plan (trans. 470-471).
The parent consented to Department personnel conducting a classroom observation of at (trans. 467). The parent attended the April 2011 CSE meeting. At the meeting, he presented reports and information to the CSE supporting his request for home based services. His request was ignored by the CSE (trans. 465). He also informed the CSE that he had moved and provided his new address (trans. 458).
When he realized that the CSE continued to send mail to his old address, the parent followed-up with the CSE. In a letter dated and faxed to the CSE on June 16, the parent informed the CSE that he had received the IEP on the evening of June 15, that it was sent to his former address even though he had informed the CSE of his new address and that he objected to the proposed program, staffing ratio and absence of after school services. The parent continued to write to the CSE to inform them that his address had changed (trans.458-459, 463-464). The parent testified that, as of the time of the hearing, he continued to get mail from the CSE that had been mailed to the former address (trans. 464).
The parent, based upon his income, is unable to pay in advance the total tuition and for the after school therapists (trans. 452-453; Parent‘s Ex. JJJ). The parent has Hearing Officer‘s managed to pay the full amount of the tuition for this year (trans. 455). Ms. and Ms. charged him at the rate of $ per hour (trans. 454). At the time of the hearing, he was up-to-date with his payments to the at-home providers.
School personnel prepared an educational progress report for in January 2011 (Parent Ex. T). On the Vineland Adaptive Behavior Scales 2nd ed., Teacher Rating Scales, demonstrated adaptive skills in , and , at an age equivalent of years of age. His skills are at an age equivalent of . He was able to using a strategy. also scored at years of age in the areas of and . He ― continuously requires prompting to complete self-care tasks‖ (Parent Ex. T at p. 2). He has adaptive skills in following rules and routines—at an age equivalent of below years of age—and ― requires close supervision at all times while in the community due to his lack of safety awareness‖ (id).
The report explains that ―
exhibits a high rate of that interferes with his with others. His is defined as such as including , and often, have no meaning‖ (Parent Ex. T at p. 2).
communicates through to request items or to use the bathroom. With prompting, he will use up to . With , he can engage in with an adult before in non‖ (Parent Ex. T at p. 3). He can follow directives.
Dr. testified that he had in and had been working with disorders since 1980 in classrooms and residential environments and conducting research (trans. 241). He is the director of the school, where he oversees the clinical, educational and behavioral programming for the students, including (trans. 242). He is present in ‘s classroom on a and participated in ‘s April 2011 CSE meeting (trans. 251). There are students, including , ranging in age from years in ‘s class, with adults (trans. 277-278, 285).
personnel have conducted FBAs of ‘s behaviors and created, and implemented, a ― ‖ for targeting - (trans. 245). At this time, ‘s have been reduced to ―‖ through ‘s ― good, structured program‖ with ― staff working hard to gain some positive rapport‖ with him as well as through having ― an established, recognized routine and schedule‖ and ― being provided with goals and opportunities of Hearing Officer‘s community-based instruction that he finds ‖ (trans. 246). The consistency in this program has been ― critically important‖ for because individuals with ― have with understanding the world around them‖ and ― relevant to‖ what he is doing now, what he doing next, and the ‖ is ― critical to them achieving sort of any level of educational or ‖ (trans. 247). If does engage in at school, classroom personnel are able to address these immediately in the classroom (trans. 268).
provides with teaching, support and assistance (trans. 247-248). The ― long-term goal‖ is to reduce this support, but is not now ready for such a reduction and is not yet able to manage group instruction or independent work in the classroom (trans. 248). Dr. did not believe that would respond to the methodology because requires a student to ― be more actively engaged within [his] own environment . . . so that [he] can pick up on the environmental cues and protocols that they have embedded within the context of the work station‖ (trans. 250). ― isn‘t that engaged with his external environment‖ (trans. 250). Furthermore, sets up a ―
very artificial environment‖ which does not promote generalization—students can function in the classroom yet not use their learned skills in other environments (trans. 250).
has tremendous difficulties with attending to tasks. If the task is highly motivating for him (such as watching a video), he can ― attend to quite well;‖ however, with respect to academic tasks, ― for which he has very little interest,‖ he ― has very poor skills‖ (trans. 252). also has a ― disorder that results in a lack of ‖ (trans. 253).
provides with the related services of therapy for five hours per week (four hours individually in the classroom and one hour in a group in the classroom) (trans. 253-254). The also trains the classroom staff on how to integrate ‘s and programs into his daily programs (trans. 254). is provided in the school‘s therapy gym which contains and in the classroom. goals are also incorporated into the classroom (trans. 246).
‘s individualized program goals at are created by his classroom teacher, therapist, therapist, Dr. , a and the parent (trans. 257). Data is collected by teachers and then analyzed by the . The data is then discussed at biweekly staff meetings (trans. 259-260). Hearing Officer‘s has been making progress at : his rate is very low; his ― off-task vocalizations and are probably at an all-time low;‖ he maintains a positive affect and attitude—― we‘ve been able to actually support him to lower the rates of his behaviors in a way that actually increases his happiness‖ (trans. 274). Dr. opined that these improvements were directly attributable to the protocols implemented at and that if these protocols were eliminated, by, for example, enrolling in a classroom, his behaviors would increase immediately and his ― skill acquisition [would] slow dramatically because his on-task behavior would be reduced‖ (trans. 275).
Dr. opined that a program would not provide adequate support for because ― he requires much more significant instruction to keep him active‖ and because does not have the ― skill set‖ to be successful in a group setting (trans. 238).
Dr. is in contact with ‘s home-based therapist, (trans. 260). Mr. has visited to observe and worked with personnel. Dr. opined that ― is definitely one of those students‖ who needs an after school program because his ― rate of acquisition‖ is ― challenged‖ (trans. 262). For example, needs more reading practice than can be provided during the school day. Mr. is also working on community skills for to be able to function in his new neighborhood because the family has recently moved (trans. 280).
Dr. also opined that if did not have the supports of the program and the after school program, he would ― absolutely‖ be at risk for a residential placement because he ― is a very young man. And without the proper supports . . . the impact of all his challenges on his [ ] programming would be significant‖ (trans. 264-265).
, ‘s head classroom teacher at for the 2011-2012 school year, testified that he held a master‘s degree in experimental psychology and was a BCBA (trans. 356-357). There are students in the class with Mr. , and four full time instructors. therapists are also present in the classroom. All the students in the class receive both these therapies (trans. 358). ― typically works best with male instructors‖ (trans. 360). Four of the instructors are male.
Data is collected in order to determine the efficacy of the programs and whether programs should be changed (trans. 362). needs one-to-one support in order to learn;
Hearing Officer‘s
Mr. has attempted group instruction with . These efforts have not been successful because needed the one-to-one prompts in order to respond (trans. 375).
displays that interfere with learning. These include such as and as well as . These in frequency during the time he has attended (trans. 363). These behaviors have been triggered by witnessing of other students, especially during lessstructured periods of time such as gym or lunch. Mr. stated that should not be educated in isolation. Even though other students might trigger ‘s , still needed to be with other students for social purposes and should not be segregated from peers (trans. 365-366). Mr. observed that the data collected in the classroom shows that since September, ― the rates of and vocal intensity have both decreased through very and strict planning that have included or added to his ability to be around other students and his ability to manage in a classroom with other students‖ but this has required ― very, very intense structured programming with a lot of attention paid to supporting him . . . when those triggers occur‖ (trans. 366-367).
has a written plan at which was created by and is modified as necessary by Mr. in consultation with Dr. and the other instructors in the class (trans. 367-368).
Mr. targets reading fluency, number concepts, basic academics, self-care skills, community integration, social behavior and social skills with . He noted that ‘s ― performance rate will typically be ‖ because he ― requires significant amounts of prompting to initiate the particular task‖ and ― extremely clear, concrete, repetitive prompts‖ (trans. 377). Even with such prompts, ‘s processing rate is very slow, his attention is not consistent and his ― endurance to task is not necessarily there‖ (trans. 377378). Mr. uses visual displays and reinforcement to keep working for timed intervals (trans. 379).
Since July, has made progress mainly in the area of behavior, with an ― enormous reduction in the ‖—from to episodes per day in July to (in November) an average of episodes per day (trans. 381, 385). The fewer behaviors engages in, the more available he is for learning. Furthermore, must reduce these behaviors in order to manage in the community (trans. 382). has also improved his ability to sit and read without he has heard (trans. 383). He has increased the rate at Hearing Officer‘s which he acquires sight words—from averaging sight words over two weeks to now averaging about five new sight words in about five days (trans. 384).
has community goals at , and these goals are worked on daily through community outings (trans. 375-376). has been able to acquire community skills through these trips and requests these trips in order to replenish his snack supply, which also shows Mr. that is willing to go on such trips and enjoys them (trans. 376).
Mr. communicates with Mr. through email and when Mr. observes at (trans. 368). They coordinate on the behavioral approaches used with at home and in school (trans. 369). Mr. opined that needs an after school program because he needs consistency in his behavior in both school and at home with ― highly-structured activity with clearly defined expectations and very powerful and detectable positive consequences for compliance generalized‖ at home and at school. would be unable to maintain the ― stability‖ he demonstrates in school without ― continued structure[d] programming‖ after school (trans. 370-371).
The school day at starts at 8:45 A.M. and ends at 4:45 P.M. (Parent Ex. X; trans. 256).
testified that he was certified as a BCBA in 2004 and has been working with children with for ten years (trans. 405). He has been working with for approximately seven years, providing home-based educational and behavioral therapy (trans. 407). He currently provides services to on weekday afternoons (trans. 413).
Mr. explained that consistency is very important for , given his history of , because he has difficulty generalizing and skills to different environments. Mr. provided ― opportunities‖ for to practice new skills and positive behaviors in different environments (trans. 411). Mr. was working with on skills and academics, specifically reading, critical thinking skills and language skills (trans. 412). The language skills is working on include extending the length of his utterances, use of prepositions, and labeling common objects and actions in his environment. The ADL skills he is working on include appropriately, greeting the , and (trans. 412-413).
is capable of engaging in ―
a high rate of ‖ that include scripting from movies and . These vocalizations ―, and he is unable to complete work tasks and follow through Hearing Officer‘s with ‖ (trans. 416). These vocalizations were occurring ― every few seconds;‖ now however, these behaviors have been reduced to approximately ten per session, but when there is a break in services, they return (trans. 426). This reduction has permitted to focus on his academic instruction and adaptive activities such as , which requires 84 steps for , (trans. 426-429). It is important for to learn these activities in the environment in which he would naturally do these activities—home rather than school (trans. 430-431). has made progress this year in both his academics and ADL skills (trans. 432-433).
also engages in ―
as a means to escape work demands or as a action (trans. 417). Mr. has been working with to reduce these actions. ‘s - have been less prevalent this year during the home based instruction (trans. 417).
has also made progress in the area of communication this year. He has increased his ability to request items and information for people make his wants and needs known. He is reading at a pace and identifying objects in his environment (trans. 432-433).
Mr. communicates with Mr. by email often and when he visits every three to four weeks (trans. 436-437). They discuss (trans. 413). He has also met with Dr. (trans. 414). The parent is very involved in the home program and in working with Mr. (trans. 418-419).
Mr. opined that the program in combination with the home services were sufficient at the present time to keep out of a (trans. 415). Without both components of ‘s program, ‘s behaviors would return (trans. 415). needed the after school services for support (id).
Mr. charges ‘s family $ per hour for his services. This rate is ― competitive‖ in the New York City market (trans. 415-416). There is another provider, , who works with for two hours per week; a third provider, , had worked with for four hours per week. She is no longer working with . The family has been working to replace her, but it is difficult to find someone who has the proper level of training and background to work with (trans. 421-422). Mr. opined that twelve hours per week of home-based services was appropriate for , that it has been difficult to cover Hearing Officer‘s all the necessary programs during only eight hours per week, and that, with only eight hours presently, he is beginning to see regress to higher rates of and , which have in the past led to (trans. 423. 439).
Dr. testified that he had a doctorate degree in clinical psychology with an emphasis in and was the clinical director of the in , where he conducts evaluations of children with usually disorders (trans. 291-292). He evaluated approximately times between late 2006 and July 2011. These evaluations included observations of in his educational placements (trans. 293; Parent‘s Ex. N). Dr. observed that the model was ― good‖ for because research shows that it is effective for students with behaviors (trans. 297-298). The intensive therapy that has received over the past few years has ― proven important for ‖ because it has both furthered his education and kept him safe (trans. 298). Furthermore, requires a approach because ―
[t]he degree of his disability and the types of interfering . . . behaviors‖ he has, such as and , result in the need for ― inputs from one instructor designed specifically for ‖ (trans. 298-299).
Dr. observed at during periods (trans. 307). He opined, based upon his observation, that was an appropriate component of an educational program for because he ― requires a comprehensive, -based education program‖ and is ― utilizing procedures in helping learn as much as he can in the areas that he needs to learn‖ (trans. 307-308).
Dr. also reviewed the home based program and noted that this program focused on ― ‖—those ― behaviors that allow one to take care of one‘s individual basic needs‖ such as . Dr. observed that ― for individuals with , particularly at the severity that has been affected, these are with respect to achieving as much independence as they can‖ (trans. 310). Dr. opined that continues to need after school services because, without such services, ‘s would increase and his needs for skills in such areas as dressing and showering would not be addressed (trans. 316).
Furthermore, it is important that ‘s parents receive training and about ‘s needs and how to address them (trans. 313).
Hearing Officer‘s
Dr. would not recommend the methodology for because it does not address behaviors and learning in the consistent and analytical way (as does ) that requires (trans. 318-319).
Dr. , the Department‘s director of placement for District , was subpoenaed by the parent (trans. 219). She testified that offers of placement are made prior to June 15 for the school year starting on July 1 (trans. 225). Placement officers ― definitely would try to find an program‖ for a student was making progress in an program because ― if the child‘s having success in one program, then we should give that child that program, if we have it [for] him‖ (trans. 227-228). However, there is no space on the District referral form to inform the placement officer that the student is in an program (trans. 228). Dr. assumed that if a student were placed in a particular class for July 1, then that student would remain in that class in September (trans. 231). Also, students are not placed in classes with age ranges greater than three years, and should not have been placed in a class that included students aged eleven years (trans. 235-236).
The parent visited on June 30—the day after he received the FNR—and faxed a letter to the CSE after the visit (Parent Ex. E). In the letter, the parent stated that was ― inappropriate‖ for because the classroom was not adequate for him, there was no assurance that the school would be able to meet his related services mandates, the school utilizes the methodology and there was no BCBA on the school‘s staff. The parent informed the CSE that that he was placing at and seeking tuition reimbursement (trans. 458-460).
The parent signed the Enrollment Contract for the 2011-2012 school year on May 24, 2011 (Parent Ex. V). Tuition at the School for the 2011-2012 school year (July 5 through June 30) is $ Prior to the hearing, the parent had paid
.00 to date (Parent Exs. V, LL, MM; trans. 265).
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 Hearing Officer‘s
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 Hearing Officer‘s 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: (1) a program that is inadequate; (2) a prepared without the input of an FBA and that is inadequate to address ‘s interfering behaviors; and (3) an absence of services tailored to ‘s needs for home and community teaching and generalization of skills. Furthermore, the proposed placement at P.S. , where the defective IEP was to be implemented, was inappropriate for .
The program is inadequate to address ‘s unique and identified special educational needs. manifests behavioral challenges that are both and impact his .
Hearing Officer‘s
These behaviors currently include , such as , which impact his ability to attend to and participate in learning. All the witnesses who have worked with clearly testified that requires instruction throughout the school day in order to learn. is has difficulties with to participate in any learning-related activity. Every witness who has worked with unequivocally and credibly stated, based upon their experiences with and their educational expertise, that requires support to address his behaviors and distractibility in order for him to learn. There is one special education teacher in the class. He or she would be unable to provide sufficient one-to-one teaching to throughout the school day. is unable at this time 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.
also manifests significant requiring of material and intensive development of . speaks in phrases of approximately five words with the support of prompts from his teacher and is functioning at a in reading. During the last school year, was functioning at the level of a year old in the ADL areas of and . There is nothing in the record to indicate that a program would be able to address these significant language, academic and .
There is no dispute that ‘s interfere with his learning and that the Department did not conduct an of . It is clear that an was required for :― a assessment‖ must be conducted ― for a student whose his or her learning or that of others.‖ 8 N.Y.C.R.R. §200.4(b)(1); see also Appeal Nos. 11-092, 11-094 at p. 22). Department personnel should have obtained an . Furthermore, the annexed to the IEP is inadequate. The plan targets ― and ‖ with ― clear expectations for performance and duration of tasks,‖ reinforcers, updating preferences ― regularly,‖ a visual schedule, reinforcement of alternative behaviors and frequent breaks. These strategies are not described sufficiently to enable their implementation in the classroom, are inadequate for given his need for one-to-one instruction and engagement, and would not result in ‘s being available for learning nor in his safety in the classroom.
In sum, the IEP (with the ) is inappropriate because it does not include sufficient and support to result in making any meaningful educational progress. See Application Hearing Officer‘s of a Child with a Disability, Appeal No. 10-039 (district failed to offer FAPE because the recommended program did not ― provide the level of individual support required to address the student‘s distractible behaviors and attention needs‖).
Furthermore, requires repetition and reinforcement of material. ‘s requires that learned material and acquired skills be generalized, practiced and reinforced in multiple environments—these skills are useless if he can implement them only at school and is unable to demonstrate them at home and in the community. In addition, there are skills that needs to attain in order to develop some . These include skills such as that cannot be worked on in school and which will learn only with intensive instruction. also needs to learn how to navigate in his community—crossing the street, taking the elevator and going to the store in his neighborhood. Since the IEP does not include necessary after-school services for , the program offered by the Department is inappropriate for him.
While the IDEA does not require that the child‘s IEP list a particular school, the school district is required to assign the child to a school at which the child‘s IEP mandates can be satisfied and the child‘s educational needs met. M.H. v. New York City Department of Education, 712 F. Supp. 125, 162-164 (S.D.N.Y. 2010). Placement at would not have been appropriate for . First, and foremost, Ms. stated that none of the students in her classes were . Ms. was not sufficiently supported to safely address ‘s or . Her testimony revealed that she was an educator. However, she has not been trained to address the types of manifests. And calling the to isolate in another room, and perhaps calling ,‖ is not a response to ‘s that will promote a reduction in those behaviors nor an approach that will further promote his learning.
The evidence presented at the hearing establishes that the Department did not offer a free appropriate public education for the 2011-2012 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.
II. The Appropriateness of and the After-School Program The parent bears the burden of proof concerning the appropriateness of and the after-school 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. Hearing Officer‘s
169 (2007). To meet this burden, the parent must show that the educational services provided at and in the after-school program address 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09CV-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).
requires instruction in order to learn and to address his . provides with this level of support. personnel address ‘s needs for instruction in the areas of and community skills. also provides with therapy and therapy in a manner that is integrated to permit carryover of e skills and skills in the classroom.
has made remarkable progress in the area of in and in to to one to two per day. These reductions have enabled him to make improvements in reading, ADL and communication skills. personnel are directly responsible for these reductions in episodes. Staff has planned and implemented a carefully developed plan that is modified as needs it to be modified based upon diligently collected data. Staff can address his in the classroom and get him back to learning.
Hearing Officer‘s
The are an integral component of ‘s educational program. As stated above, he requires these services for generalization and and skills that cannot be worked on in school. also needs extended because he learns slowly and requires a high level of repetition in order to learn. has improved his reading, developed new skills, and developed his abilities to navigate in his neighborhood during his sessions.
It is important to remember that the ―
special‖ in special education means precisely that—special. In other words, ― specialized instruction . . . to meet the unique needs of a child with a disability.‖ 20 U.S.C. §1401(25). The evidence demonstrates that the program crafted by the parent meets this definition. has made progress while enrolled at and receiving the after-school services.
Considering the ―
totality of the circumstances‖ as required by the Second Circuit in Frank G., the evidence supports a finding that the program at and the after-school services were 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, over the years, enrolling in the Department‘s programs, facilitating ‘s participation in the CSE‘s evaluation process, attending CSE meetings, communicating with School District personnel, and visiting the placement at . At the CSE meeting, both the parent and the educators who worked with were open and forthcoming with School District personnel with respect to ‘s needs.
Therefore, for all the above reasons, it is ordered that:
1. The Department of Education shall reimburse the parent for the tuition he has paid to the School for ‘s enrollment for the period from July 1, 2011 through and including June 30, 2012. The amount of reimbursement shall not exceed $ 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 service provided to during the period from July 1, 2011 to and including June 30, 2012: up to 12 hours per week of home based therapy at hourly rates not to exceed
Hearing Officer‘s
$ for Mr. , $ for Ms. , and $ for Ms. . Should the parent replace Ms. , the parent shall be reimbursed at the rate of no more than $ per hour for that individual. Reimbursement shall be paid by the Department within fifteen business days of receipt from the parent of proof of payments to the providers. Dated: December 15, 2011
______________________________
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Hearing Officer‘s
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Demand for Due Process with Fax Confirmation, 6/30/11, 12 pp. B Interim Order By: , Esq., 10/15/10, 7 pp. C Findings of Fact and Decision by: , Esq., 10/6/09, 18 pp. D IEP, 4/29/11, 23 pp. E Letter to Region with Fax Confirmation, 6/30/11, 3 pp. F FNR, 6/14/11, 1 p. G Special Education Service Delivery Report 75M079 ( ) – School)
2009-2011, 2 pp. H Organization Directory for District )– School), 10/2010, 3 pp. I Letter to Region with Fax Confirmation, 6/16/11, 3 pp. J Letter to Region with Fax Confirmation, 4/26/11, 4 pp. K Due Process Response NYC DOE By: , 7/1/11, 5 pp. L Report-The School By , ,
7/15/11, 6 pp. M IEP Goals-The School, 2011-2012, 2 pp. N Report of Observation, By Dr. ,
7/14/11, 7 pp. O Department Progress Report-The School , M.S. CCC-SLP, 7/2011, 4 pp. P Test Results- he School By: , M.S. CCC-SLP, 5/2011, 1 p. Q Report by , BCaBA, 5/2011, 2 pp. R CSE Meeting Minutes, 4/29/11, 3 pp. S Notice of IEP Meeting NYC DOE, 4/4/11, 1 p. T Educational Progress Report- The School By: , M.S., Ed , ABA
Instructor, 1/25/11, 6 pp. U Report- The School By: , , , , 1/3/11, 8 pp. V Enrollment Contract- The School, 2011-2012, 3 pp. W Class Profile-The School, 2011-2012, 1 p.
Hearing Officer‘s
X Daily Schedule-The School, 2011-2012, 1 p. Y Classroom Observation NYC DOE By: , 12/14/10, 1 p. Z Department Progress Report-The School By: , M.S. CCC-SLP, , M.S.
CCC-SLP, 12/2010, 4 pp. AA IEP Goals-The School By: , M.S. CCC-SLP, 9/2010, 11 pp. BB IEP Goals-The School By: , , , L, 9/2010, 2 pp. CC Instructional Program-The r School, 3/9/10, 2 pp. DD , The School, 2011-2012, 7 pp. EE Attendance Record-The School, 2011-2012, 1 p. FF Staff List- The School, 2010-2011, 1 p. GG IEP-The School, 2010-2011, 5 pp. HH Curriculum Components Overview-The , 6/2011, 14 pp. II Curriculum Format/Sample Instructional Program-The School, 3 pp. JJ School Mission Statement-The School, 1 p. KK Information about The School, 3 pp. LL Progress Meeting Minutes with Progress Report
By: , 2/17/09, 5 pp. MM School Calendar- School, 2009/2010, 1 p. NN Clinic Calendar, 2009/2010, 1 p. OO Enrollment Agreement with Proof of Payment , 2009/2010, 4 pp. PP Calendar and Brochure , 2009/2010, 3 pp. QQ Invoices and Proof of Payment- School, 2009/2010, 8 pp. RR Invoices and Proof of Payment, , BCaBA, 2009/2010, 10 pp. SS Invoices and Proof of Payment, , , , 2009/2010m 8 pp. TT Inovices and Proof of Payment-The , 2009/2010, 12 pp. UU Invoices and Proof of Payment, , 2009/2010, 13 pp. VV Invoices and Proof of Payment, , 2009/2010, 7 pp. WW Transportation, EZ Pass and Credit Card Statement, 2009/2010, 9 pp. XX Jose P. Consent Order, 8/3/88, 69 pp. YY Progress Report- By , 2/14/09-10/30/09, 2 pp.
Hearing Officer‘s
ZZ Progress Report- By: , 12/19/08-9/18/09, 2 pp. AAA Progress Report- By: , 11/15/08-7/17/09, 2 pp. BBB Master Scoring Form, 8/2009, 2 pp. CCC Assessment of Basic Language and Learning Skills and Key, 2009/2010, 2 pp. DDD Notice of IEP Meeting, 11510, 2 pp. EEE Progress Report- By: , 10/31/09-2/5/10, 2 pp. FFF Clinic Calendar- , 2010, 1 p. GGG Assessment of Basic Language and Learning Skills Graph (The ), 2009/2010, 2 pp. HHH Assessment of Basic Language and Learning Skills Book (The , 2009/2010, 117
pp. III Invoices and Cancelled Checks, , 2009/2010, 10 pp. JJJ Invoices and Cancelled Checks, ( ) , 2009/2010, 11 pp. KKK Enrollment Contract, Invoices and Cancelled Checks , 2009/2010, 5 pp. LLL Invoices and Cancelled Checks, , 2009/2010, 10 pp. MMM Invoices and Cancelled Checks, , 2009/2010, 9 pp. NNN Invoices and Cancelled Checks, , 2009/2010, 12 pp. OOO Invoices and Cancelled Checks, , 2009/2010, 10 pp. PPP Travel Expenses, 2009/2010, 16 pp. QQQ Progress Report , 4/5/10, 3 pp. RRR Letter, 3/3/10, 1 p. SSS Progress Report , 2/8/10-3/19/10, 5 pp.
DEPARTMENT OF EDUCATION
3 Department Annual Review Notice to Parents, 10/3/10, 1 p. 8 School Individualized Education Plan, 2010-2011, 5 pp. 9 School IEP Goals, 9/2010, 2 pp. 13 School IEP Goals, 9/2010, 11 pp. 15 Progress Report, 2/8/10-3/19/10, 5 pp. 16 Progess Report, 3/19/10-5/7/10, 3 pp. 17 Progress Report, 5/7/10-6/25/10, 8 pp.
Hearing Officer‘s
18 Letter from , BCaBa, 8/2010, 2 pp. 19 Educational Programming Review,
8/10/10, 8 pp. 20 Educational Programming Review,
9/28/10, 6 pp. 21 Department Individualized Education Plan, 2/28/10, 4 pp. 22 Letter from to Committee on Special Education, 4/26/11, 17 pp. 24 Letter from to Committee on Special Education, 6/15/11, 2 pp.
IMPARTIAL HEARING OFFICER
I Email from Hearing Officer to Counsel, 11/21/11, 1 p.
Footnotes
[2] The hearing officer ruled that the Department‘s ― prong I‖ burden included demonstrating that if were to have enrolled in on July 1, there would have been an appropriate placement for him. However, since did not, in fact, enroll in the Department was not obligated to hold that place for for September (trans. 336). Inquiry as to whether, if had enrolled in July, he would have been moved to a new class in September was permitted.