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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: November 23, 2011
November 29, 2011
December 8, 2011
December 15, 2011 Actual Record Close Date: December 21, 2011 Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 23, 2011
Attorney — Student
-, Attorney — Student
Parents
Attorney — DOE
E, Special Education Teacher Assigned, CSE (via telephone) — DOE
Special Education Teacher, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2011
Attorney (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2011
Attorney — Student
Parents
Teacher, (via telephone) — Student
School Psychologist (via telephone) — Student
Provider, School (via telephone) — Student
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2011
Attorney — Student
Attorney — DOE
The parents of . requested an impartial hearing on July 6, 2011, for the purpose of obtaining tuition reimbursement for their unilateral placement of at the School for the 2010-2011 school year. (Department Of Education [“DOE”] Ex. 1, 15). 1 I was designated to hear this matter on July 7, 2011 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on November 23, and December 8 and December 15, 2011. The compliance date was extended on four occasions, due to the unavailability of witnesses, and because of the parent’s attorney’s injury. The final compliance date was January 2, 2011. (IHO Ex. I).
is a year old girl with a classification of Impairment. Her classification is not in dispute. (Tr. pp. 29, 97).
testing was performed at the in October and November 2008. At the time, was attending an program and receiving related services of and , as well as 15 hours per week of special education itinerant teacher (SEIT) services per week. It was recommended that she receive intense, individualized support with and development, as well as a for and . It was recommended that receive reinforcement to at school, and these incentives continue to be worked into a system outside of the classroom. s verbal IQ was in the range; however, IQ was in the range. Her skills were solid at the percentile when compared to others her age. Her symptoms appeared to fall on the . (DOE Ex. 6).
In the Fall of 2009, the parents enrolled at the School, where she was educated in a class of ten students; and received related services of and , both for thirty minute sessions, twice per week. It was reported that she is a girl in the classroom. It was further reported that she processing, , skills, , and regulation such as being cognitively rigid. (Doe Ex. 12). In a report dated April 27, 2010, ’s teacher reported that had made great gains in the classroom in the use of , in playing cooperatively with other students, and following the routines of the day. It was further reported that following long school breaks, takes a to return to the levels of and performance demonstrated before the break. It was recommended that she attend school year round, to help her retain academic and social skills she has acquired. (DOE Ex 10).
The same request had been previously made, but withdrawn.
, a certified special education teacher, performed a classroom observation of for forty five minutes on December 1, 2009; and participated in the development of her IEP. When Ms. entered the classroom, at 9:30 am, was , “ ”. After three minutes, she was told by her teacher to . Two minutes later she returned, still ”; and was told to . At 9:40 am, she returned to the class and participated for the rest of the lesson, following directions and demonstrating age-appropriate peer interactions. (DOE Ex. 3).
On May 26, 2010, the Committee on Special Education (“CSE”) met to review ’s program. The review team utilized The psychological evaluation, which was felt to be complete and which was performed less than two years before the review. It also reviewed reports from the school, provided by the parent. (DOE Exhibits 8, 9, 10, 11 and 12; Tr. p. 18). The review team included Ms. , who served as a special education teacher and District representative, a school psychologist, a general education teacher, a parent member, Mrs. ., ( ’s mother) and Ms. , the head teacher for ’s class. (DOE Ex. 3, p. 2; Tr. p. 22, 26). The CSE recommended placement in a Special Class in a Community School, with a staffing ratio of , with related services of times per week for thirty minute sessions, in a group of two (with two of the sessions being “push in”) and twice per week for thirty minute sessions individually, therapy twice per week for thirty minute sessions individually; and counseling once per week in a group of two. (DOE Ex. 3, p. 16). The CSE recommended that all related services continue during the summer months, but did not recommend that participate in a class during the summer months. (Tr. p. 23, DOE Ex. 3, p. 10). Ms. testified that she agreed with the recommended program. (Tr. p. 12).
She testified that the CSE felt that discontinuation of all services during the summer months would probably result in regression. Therefore, it recommended related services during the summer months, which it felt would prevent regression. (Tr. p. 45). She testified, however, that ’s twice weekly services, on a push-in basis, would not be available during the summer, as there would be no class for her to push into. (Tr. pp. 57-58). Related Services Authorizations were never offered to the parent so that could receive her related services during the summer months. (Tr. p. 80).
Ms. testified that she worked with Ms. to develop academic goals for . (Tr. p. 26). It was reported that was on grade level (mid in reading and end in math), as of the time of the review; but that her major deficit was in and , and in her inflexibility. (Tr. p. 27; DOE Ex. 3, p. 3). The IEP includes academic goals for reading (decoding), reading comprehension, math (simple addition and telling time), and writing. (DOE Ex. 3, pp. 6-7). It also includes goals for increasing play skills and increasing by continuing to maintain engagement with others when unexpected changes in her routine occur. These goals were developed in consultation with the teacher and ’s mother. (Tr. p. 29; DOE Ex. 3, p. 8). She testified that everyone who participated in the meeting agreed with the academic and goals. (Tr. pp. 33-35). The goals and therapy goals were drafted based upon reports from the providers, and were agreed to by all of the participants in the meeting. (Tr. pp. 36-37; 40-41). Ms. testified that ’s is in pragmatic skills. Therefore, she was recommended for sessions in a group of two; two of those sessions being on a push in basis, because the mother felt that being pulled out too much would adversely affect her. (Tr. p. 42). Counseling was recommended in a group of two, also to address ’s poor skills. (Tr. p. 42).
’s IEP does not include a , as it was felt that her behaviors did not seriously interfere with classroom instruction and could be addressed by a special education teacher, and a paraprofessional through frequent sensory breaks. (Tr. pp. 30, 65).
According to minutes of the CSE meeting, the parent participated in the development of the IEP and expressed her agreement with the recommendations. (DOE Ex. 4). There is nothing in the record to suggest that the parent or e’s teacher challenged the appropriateness of placing in a public school setting. Nor does it appear that the parent or teacher requested a .
On July 21, 2010, was offered a seat at . (DOE Ex. 14). In an undated letter which was sent on or about the end of July, the parent wrote to , the contact person at the DOE, stating that she was unable to view the recommended program as the building was under major construction, and no one is allowed in until September. She stated that she would be unable to accept the placement as there was no opportunity for her to make an assessment. (Par. Ex. B; Tr. p. 223). On November 4, 2010 the parent responded to the site offer, describing her observation of the program on October 25, 2010. She stated that she was rejecting the recommended class as inappropriate due to the fact that the classroom seemed very chaotic, and there appeared to be no real sense of structure. She also felt the noise level was particularly high, and that the other children seemed low functioning and “extremely hyper”. (Par. Ex. A). Neither letter from the parent included any notification that she would be unilaterally placing her daughter at the School and seeking public funding for the placement.
Nine months earlier, on December 15, 2009, the parents signed a contract reenrolling in the school for the 2010-2011 school year, at a cost of $43,500. By the terms of the contract, a non-refundable deposit of $8,000 was due on February 1, 2010; and the balance was due on February 1, 2010. (Par. Ex. C, p. 4). On April 20, 2010, they enrolled for the 2010 Summer program at the School, at a cost of $6,300, with a nonrefundable deposit of $3,000. Another payment of $2,900 was due on May 1, 2010. (Par. Ex. C, p. 1). The tuition for both programs has been paid in full. (Tr. p. 235).
Ms. , a certified special education teacher assigned at , the School (“ ”), testified that during the 2010-2011 school year, she was the teacher assigned to a class. She testified that she had as a special education teacher within the DOE, and ten years of experience prior to that, as a teacher in parochial schools. She stated that a large proportion of the children in the class had impairments. The others had classifications of other and . (Tr. pp. 85- 86). She testified that the school had approximately 600 students. (Tr. p. 87).[2] Her classroom was located on the third floor; with a total of 12 to 15 classrooms on the same floor. (Tr. p. 88).
When school started, there were eleven students in Ms. ’s class, with ages ranging from Most of the students were emergent ( ) or readers, with the highest level student being on the level. The students also functioned on a level in math. (Tr. pp. 91, 125). The classroom had one assigned paraprofessional, with several years of experience working with children with disabilities. The classroom also included paraprofessionals assigned to individual students for . (Tr. p. 92). The students had lunch in the classroom; but as they became more settled, they began having lunch with other in the cafeteria. They interacted with other children in the playground for recess. (Tr. p. 94). She testified that accommodations could be made for a child who felt by lunch or recess, so that he/she might each lunch with a or with Ms. . (Tr. p. 134).
Ms. uses positive reinforcement, as needed. Some of it is just informal, in the form of praise. Formal positive reinforcement, such as a sticker chart or earning a privilege, is used, as needed, depending on the child. (Tr. p. 100).
Ms. described various techniques that were used in her class, including a approach, , and , , and and . (Tr. pp. 96-99). She testified that students are grouped for instruction, in accordance with their abilities and the goals they need to meet. (Tr. p. 100). She testified that she would rotate among the groups, providing instruction; and that the student teacher and paraprofessionals would also provide activities she had planned and taught them to use. (Tr. pp. 125-26). Ms. testified that she was trained in and . (Tr. p. 129).
Based upon ’s IEP, she testified that her academic levels were similar to many of the children in the class. (Tr. p. 103). She testified that the school has three therapists, , and two related service mandates could have been met at the school. (Tr. pp. 105108). She explained how ’s IEP goals would have been implemented within the class. (Tr. pp. 109-118).
Ms. testified that there was one child in the classroom who was . She stated that if a child in the class has a temper tantrum, the child will be moved to a quiet area within or outside the classroom, until he can calm down. The child will be provided with individual support from herself or a paraprofessional; and a choice of drawing a picture, talking or holding a comfort object until he or she could calm down. (Tr. p. 128).
Mrs. ., ’s mother, testified that began attending the for her year. At the time, she still had issues, including . She testified that noise would set off. (Tr. p. 217). At the School, she learned to calm herself within a structured environment, knowing exactly what is going on. (Tr. p. 217).
Mrs. . testified that she attended the May 26, 2010 CSE review and that she agreed with the IEP goals which were developed. She also felt that her questions were satisfactorily answered. (Tr. p. 218). She did not receive a Final Notice of Recommendation until late in July. She attempted to call the recommended school several times, but received no answer. She went to look at the school; however it was under construction, and she was told she wouldn’t be able to speak with anyone until the start of the school year. She sent a letter explaining this to the CSE, but did not receive another notice of placement, or any related services authorizations. (Tr. pp. 221, 223, 232).
She testified that she made the decision to place into the School summer program towards the end of June, at the very last minute. (Tr. pp. 240-241). She testified that the parents waited until the last minute “because we don’t want to hear that my child needs a 12-month program and certain times you just sort of have to face the fact that this is what your kid needs.” (Tr. p. 241).
At the end of October 2010, she went to visit the , the recommended site, but felt that the . The children were running around and there were five adults in the room. (Tr. p. 224). The school was very large, and included a middle school. She did not see any one-to-one interaction with the five adults in the room. (Tr. p. 228). She testified that in this type of environment, would be in a and , and would not have received an educational benefit. (Tr. pp. 227-228).
Mrs. . testified that during the 2010-2011 school year, made progress in academics and in her language. She is able to have a conversation and express her feelings. (Tr. p. 234).
, a certified general education and special education teacher employed at the School, testified that she is currently ’s teacher, and was also her teacher during the 2010-2011 school year, when was in the first grade. (Tr. pp. 164-165). began attending the School in the prior year (her ). (Tr. p. 168). The school has in place a program called “ ”. The program involves the use of a , with a (1), a (2) and a (3) , to indicate to the children when they need to calm themselves, or if they reach a 3, to take time to sit on a or a minutes. (Tr. pp. 163-164). has responded well to the program. (Tr. p. 165).
attended the summer program in 2010, prior to entering grade, and was successful in that program. (Tr. p 169). The program ran from July until the second week of August, and was run by teachers, including a certified teacher. The students received academic instruction in the morning, in small groups, as well as related services pushing in. During the afternoon, the students received swim instruction and would go to a park, where they interacted on a more independent level. (Tr.pp. 176-177).
Upon beginning the 2010-2011 school year, knew the letters of the alphabet and was able to identify the beginning sounds and words; but had difficulty with answering more complex why questions and with rules of capitalization. She was distracted by stimuli and was . She needed support to initiate and maintain play; and extra wait time to answer questions. She was ready to begin the math curriculum, although she continued to concepts. She requires clear expectations and instructions. (Tr. pp. 166168).
Ms. testified that during the 2010-2011 school year, became more independent when reading social cues, and more willing to cope with changes in schedules. She was promoted to the grade. (Tr. p. 170). She testified that the level of noise in a public school setting would be overwhelming to as she is . In addition, she testified that would be by transitions in the hallways, the large gyms and lunchrooms. (Tr. p. 171).
The School has approximately 118 students. grade class included twelve students and two teachers; Ms. , and an assistant teacher (Ms. ), who was also a certified special education teacher. The students were all years old and functioning on a grade level academically. Most of them had impairment. (Tr. pp. 178-17). Students were placed into smaller instructional groups of five or six, for reading and math, based upon their ability in that area. (Tr. p .183).
Ms. provided one-to-one support to and the other students in the class. (Tr. p .180). Ms. testified that this function could not be provided by a paraprofessional who lacks the knowledge and experience in understanding what works for this population. (Tr. pp. 182-183).
, a certified school psychologist, at the School, testified that she heads a department with one other psychologist and two social workers. (Tr. pp. 185, 188). She testified that she was the team psychologist in ’s classroom during the 2010-2011 school year. did not receive services; however Ms. pushed in and supported her at various times of the day, particularly during unstructured times such as free choice and lunch time. also benefited from the social skills program which took place within the classroom once per week. (Tr. p. 189). At the end of the 2010-2011 school year, the team recommended that begin to receive , as her skills had progressed to the point that she could . (Tr. pp. 192, 196). At the start of the 2010-2011 school year, it was felt that the focus should be more on her issues, which were impacting her in the classroom. (Tr. pp. 201-202).
During the 2010-2011 school year, received related services of therapy three times per week and once per week; all for thirty minute sessions. (Tr. p. 202).
, a certified therapist employed at the School, testified that presents with delays in both language. (Tr. p. 208). Ms. worked with during the 2009-2010 school year, and communicated with Ms. , who was ’s during the 2010-2011 school year. During the 2010-2011 school year, she also observed in her classroom and in the hallways. She testified that made progress in expressing her wants and needs verbally. (Tr. p. 211-213). Ms. , who was also a certified , provided a combination of push-in and pull-out services; and ran within her classroom once or twice per week. (Tr.pp. 212-215).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. 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 be 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 facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993). Appropriateness of the Recommended Program
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes goals and short-term objectives related to those needs and provides for the use of appropriate special education services. Application of a Child with a Disability, 02-014. The school district must identify a school which is capable of implementing the IEP. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). 8 NYCRR 200.6(k) provides that students shall be considered for 12 month special services and/or programs, in accordance with their need to prevent substantial regression.
I find that ’s IEP, (which includes a Special Class in Community School with a staffing ratio of , with related services of ( in a group; and individually), once per week in a group of two, and twice per week individually) on a ten month basis and related services only during the summer months, does not provide an appropriate educational plan for .
The recommended that participate in a structured, supportive environment for attention difficulties and self-direction, and that she receive incentives and positive reinforcement to focus on her work at school. It was further recommended that these incentives continue to be worked into a outside of the classroom. had a tantrum within the first ten minutes of Ms. ’s observation of her. I find that the clinical information together with Ms. s observation should have indicated to the CSE that required a structured behavioral program.
’s IEP does not include any program; and the classroom recommended for her, as described by Ms. , does not provide a structured, system. I credit the parent’s testimony that the classroom environment she observed at was noisy and unstructured. In addition, her testimony that the children in the class were lower functioning academically than is supported by Ms. ’s testimony that the children were functioning on a level. In contrast, was functioning on grade level academically, during the 2010-2011 school year.
Furthermore, I find that the summer programming recommended by the CSE, which consisted of related services only, and which did not guarantee any social interaction with other children, did not address ’s need to attend school year round, in order to retain academic and social skills she has acquired.
Therefore, I find that the DOE failed to meet its burden of proving that it provided with a Free Appropriate Public Education (“FAPE”). Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128
S. Ct. 436 (2007).
I find that the parent demonstrated that the provided with an appropriate educational program designed to meet her unique needs. At the , was placed in a small class with two certified teachers, and received related services of , and , as well as instruction in social skills. The has a school wide, system which has benefited . also participated in an appropriate summer program which included academic instruction in the morning and socialization in the afternoon, with her classmates. The record indicates made significant progress, during the 2010-2011 school year, particularly in her . became more independent when reading social cues, and more willing to cope with changes in schedules. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. Tuition reimbursement may be reduced or denied upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; see Bettinger v. New York City Bd. of Educ., supra. Application of the BOARD OF EDUCATION, Appeal No. 08-084
Tuition reimbursement may also be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sec. 1412[a][10][C][iii][I]; Application of the BOARD OF EDUCATION, Appeal No. 08-
084. The purpose of the notice requirement is to give the district a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District. J.S. and A.G. v. Scarsdale Union Free School District, 111 LRP 73958 (U.S.D.C, S.D.N.Y., 2011) (citing.W.M. o/b/o O.M. v .Lakeland Central School District, 783 F. Supp. 2d 497 (U.S.D.C., S.D.N.Y. 2011).
While the parent cooperated with the DOE by providing evaluations and reports, participating in the CSE review and going to view the recommended site, she failed to communicate her disagreement with the recommended program at the CSE review. Furthermore, while the parent notified the CSE that she was unable to view the site during the summer; and later (in November) informed the CSE that she went to view the site, and determined that it was inappropriate, she never informed the CSE that the parents would be seeking reimbursement for their unilateral placement of at the .
At the time of the May 26, 2010 CSE review, the parent had already enrolled for both the regular ten month and the summer programs at the . Nevertheless, the parent did not express any disagreement with the CSE’s decision to recommend that attend a ten month program in a community school, and that she receive related services only during the summer months. Nor is there any indication that the parent requested a . Had she done so, the CSE would have had the opportunity to correct any deficiencies in the recommended program, and make an offering of FAPE.
For all of the foregoing reasons, I find that tuition reimbursement should be reduced by fifty percent.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall reimburse the parents for fifty (50) per cent of their tuition expenses for for the 2010-2011 school year, including the summer program. Dated: December 23, 2011
__________________________________
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DML:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Letter, 11/4/10, 1 p. B Letter, Undated, 1 p. C Summer Contract and Other Documents, 4/20/10, 5 pp.
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 2/7/11, 2 pp. 2 Due Process Response, 2/11/11, 4 pp. 3 IEP, 5/26/10, 16 pp. 4 Minutes of CSE Meeting, 5/26/10, 1 p. 5 Notice of IEP Meeting, 4/26/10, 1 p. 6 Evaluation, 10/08 & 11/08, 11 pp. 7 History Update, 2/24/09, 3 pp. 8 Plan, 10/2009, 2 pp. 9 Plan, 10/2009, 1 p. 10 Rationale for 12-Month Program, 4/27/10, 2 pp. 11 Fall Report, 2009-2010, 11/09, 7 pp. 12 Mid-Year Report, 2009-2010, 2/10, 9 pp. 13 Classroom Observation, 12/1/09, 2 pp. 14 FNR, 7/21/10, 1 p. 15 Re-Filed Due Process Complaint, 7/6/11, 2 pp. 16 Due Process Response to Re-Filing Complaint, 7/15/11, 4 pp.
IMPARTIAL HEARING OFFICER
I Letter from Services, 11/28/11, 1 p. II s and Related Documentation, Various Dates, 5 pp.
Footnotes
[2] She testified that a middle school and high school are also housed in the building, on the fourth and fifth floors, but that her class had no interactions with those schools.