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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 4, 2011
November 7, 2011
November 9, 2011
Actual Record Closed Date: December 3, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 4, 2011
Advocate — Student
Parents
Student
CSE Representative — DOE
School Witness, School (Via Telephone) — DOE
IEP Witness, School (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 7, 2011
Advocate — Student
Parents
Associate Dean, (Via telephone) — Student
Chairperson's Designee — DOE
Observer — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 9, 2011
Advocate — Student
Parents
Teacher (Via Telephone) — Student
(Via Telephone) — Student
CSE Representative — DOE
— DOE
the mother of., requested an impartial hearing on July 8, 2011, for the — DOE
purpose of obtaining tuition reimbursement for her unilateral placement of at the — DOE
Special Education Program (hereinafter “ ”) for the 2010-2011 school year and for reimbursement for her expenses in securing and ( ) services; and services for .[1] I was designated to hear this matter on July 11, 2011 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing was held on November 4, 7, and 9, 2011. The compliance date was extended on three occasions, due to the extensive testimony in these proceedings. The final compliance date was December 17, 2011. (IHO Ex. I).
is a year old boy with a classification of . His classification is not in dispute. (Tr. p. 29). On January 20, 2010, the Committee on Special Education (“CSE”) met to review ‟s program. Ms. , (a who testified at the hearing) as well as the parent, a school social worker, a special education teacher who also served as the District Representative, the parent‟s advocate, a parent member and two teachers and an administrator from , the school was then attending, also participated in the meeting. (Tr. p. 27; Par. Ex. C-3).
The CSE recommended continuing ‟s program recommendation of a Special Class in a Specialized School (District ), with a staffing ratio of , with related services of (5 x 30 individually); (5 x 30 individually); and (2 x 30 individually). was added, as a related services, twice per week; once individually and once in a group of two, to address ‟s issues with socialization. Twelve month programming was also recommended.2 Ms. testified that, in her opinion, the recommended program could have provided with a free and appropriate public education („FAPE”). (Tr. p. 33).
The parent‟s advocate and representatives from ‟s school, disagreed with the program recommendation; and requested instruction. (Tr. p. 32).
At the time of the CSE review, was attending (“ ”), where he was receiving services for the entire day. It was reported that he does well with “fast paced, intermixed instruction with high rates of reinforcement”. It was further reported that his difficulty and continued to impact all areas. His teachers estimated that he was reading on a level (mid-second for decoding); writing on a level, and performing math on a level. (Par. Ex. C4). He was described as as well as and secondary to his diagnosis of . (Par. Ex. C5). He was described as presenting with ; , and , and . His IEP states that he requires to improve and ; and to and ; and ; and with various writing implements. (Par. Ex. C8). His IEP includes goals for reading comprehension, vocabulary, math calculation and problem solving skills, reading (decoding), basic math skills, skills, and skills. His IEP also include goals, and
goals. (Par. Ex. C).
It was further reported that requires such as re-direction, fast paced instruction, token economies and frequent reinforcement breaks in order to eliminate off-task and attend to tasks at hand. (Par. Ex. C5). Ms. testified that his IEP addresses these issues through ; , class. (Tr. p. 38; Par. Ex. C5). ‟s IEP also includes a (“ ”) to address his and at times behavior, his with , his , and his toward strangers. (Tr. pp. 30-31; Par. Ex. C).
Ms. testified that the was based upon a , with information obtained from a classroom observation, and reports from therapists and teachers. (Tr. p. 39; DOE Ex. 2). She does not recall any disagreement, at the meeting, regarding the . (Tr. p. 14).
Following the CSE review, three offers of placement were mailed to the parent. (Par. Ex. D, E, F). The first offer of placement was sent on February 4, 2010, with a recommendation that attend . The parent went to visit the recommended site, but concluded that it was not appropriate for . (Par. Ex. D). The parent wrote the following:
“3/15/10. I visited the recomended (sic) placement but it was not appropriate for . No one was on his academic level, or his play skill level. The functioning of the class was below ‟s level. The behavior support plan observed did not exibit (sic) positive features. Regarding the therapy, requires activities throughout the entire day which was not available. For these reasons and more will be attending and an impartial hearing will be requested for tuition”. (Par. Ex. D-
1).
This site offer occurred in the middle of the 2009-2010 school year; and the issue of the parent‟s entitlement to tuition reimbursement for that school year was settled. (Tr. p. 19).
On June 22, 20120, was offered a seat at , on in . On July 12, 2010, the parent wrote to the CSE reporting that she attempted to view the site, but that it was locked. (Par. Ex. E). On July 13, 2010, the Department of Education (“DOE”) sent the parent a letter informing her that moved to at in . A telephone number was provided, together with the name of two individuals who could be contacted for an appointment for a site visit. (DOE Ex. 5). The DOE mailed the parent a third final notice, with a date of July 22, 2010 recommending placement at , with the notation “Change of Site”. (DOE Ex. 6). The parent responded to this last final notice on August 11, 2010, stating “This is the placement we went on . School is closed. Cannot observe”. (Par. Ex. F).
Dr. , a school (the recommended site), testified that the school has various special education programs, including classes with children with a primary diagnosis of . (Tr. p. 44). The school includes certified teachers, a job coach, and related services staff including therapists, therapists and therapists. Counseling services are also available at the site. The school recently started a program in which the related services providers work in the classroom during the morning doing a program called “ ”, which provides a relaxation process with refocusing the children. The school provides adaptive physical education with two gym teachers. The school has a sensory gym, and a physical therapy room. (Tr. pp. 45-46, 59). Parent training is provided every Wednesday morning, with presentations by various related services providers. There is also a Saturday program once per month, and an after school program for working parents. (Tr. p. 47).
Dr. testified that has two sites; the main site at ; and another site at . Ms. currently works at . (Tr. p. 43). She testified that a summer program was in operation at the main site from July 5 through August 15 or 16th. (Tr. p. 55).
Dr. testified that she reviewed ‟s IEP, and that all of services recommended could be provided at . In addition, his teachers would have been able to meet his IEP goals. (Tr. pp. 48-49). She testified that the school would address ‟s needs through the use of , as well as . The school would also work with . The school utilized and
Supports on a school-wide basis. (Tr. p. 49) The school does not provide instruction. (Tr. p. 69).
Dr. testified that the school has several class for ‟s age level; and that would have fit into one of these classes. She testified that the lessons within the classes are individualized based upon the educational needs of the children. (Tr. p. 53). She testified that would most likely have been placed in a class with students ranging in age from years with academic abilities ranging from a grade reading level. (Tr. p. 60). She testified that the classroom followed a format, with individualized instruction and , and therapists pushing in to the class. She testified that each student receives individualized instruction from a teacher or teaching assistant, and then works independently. (Tr. p. 63).
She stated that therapists push into the class to provide language instruction in social situations. The school focuses on in the classroom and in group activities outside of the classroom. The do work within the classroom, particularly during transitions, which can be . (Tr. pp. 64-65). In case, therapy would have been provided within the classroom, working with academics; however the therapist would have the option to provide the service outside of the classroom. Similarly, the therapist would have the option to work with him within the classroom; or take him out to the . (Tr. pp. 67-68).
On July 12, 2011, the parents signed a contract enrolling in Schools for the 2010-2011 school year, at a cost of $ with a $ deposit due immediately, and monthly installments of $ (Par. Ex. I).As of September 8, 2011, the tuition was paid in full. (Par. Ex. K). On August 18, 2010, the parents sent a notice to the CSE that they could not observe the recommended placement because it was closed, and stated that they received no reply from the District. The parents stated that they will enroll the child at and seek tuition reimbursement for the 2010-2011 school year. The parents did not state that they would be seeking reimbursement for and other at home services, provided by Ms. . (Par .Ex .G).
Mrs. mother testified that received . (Tr. p. 201). Afterward, he attended for years, form the age of . (Tr. p. 207). During the 2009-2010 school year, the parents started seeking a less restrictive environment for . She testified that they tried to see the public school, but it was not open. She testified that the school is located in , approximately a one hour and ten minute ride from her home. (Tr. pp.107-108). She testified that she decided that was the appropriate program for at the end of July or early August. (Tr. p. 219).
At , receives instruction on a basis, with children who exhibit similar behaviors to his. She testified that he has made progress in reading, math and socialization. (Tr. p. 109). During the 2010-2011 school year, received services at home from , an , and , an . She paid both therapists $ per hour. (Tr. p. 212).Ms. came to her home on Sundays to provide with including using a treadmill at home, exercises at night to , and at home. (Tr. p. 211-212). Ms. came on Saturdays, and sometimes during the week to help play with his siblings. She implemented a to help with . She also set up plans to address . (Tr. p. 213).
Mrs. testified that on July 12, 2010, after was offered a seat at , on . in , she wrote to the CSE reporting that she attempted to view the site, but that it was locked. (Par. Ex. E). She called the telephone number at the school several times, but there was no answer. (Tr. pp. 214-215). She does not recall if she called the telephone number for the placement office which was also noted on the placement offer. (Tr. pp. 214-216; Par. Ex. E). In July she received a letter from the DOE, and a second final notice. (Tr. p. 216; Par. Ex. F; DOE Ex. 5). [4]
The DOE mailed the parent a third final notice, with a date of July 22, 2010 recommending placement at , with the notation “Change of Site”. (DOE Ex. 6). The parent responded to this last final notice on August 11, 2010, stating “This is the placement we went on . School is closed. Cannot observe”. (Par. Ex. F).
Contrary to her letter, however, at the hearing she testified that she went to the school in July, but that the classroom designated for was out on a trip, and she was unable to see the placement. (Tr. p. 217, 230). She doesn‟t believe she ever returned to see the class designated for . (Tr. p. 231).
On August 18, 2010, the parent sent a letter to the CSE stating that she could not observe the recommended placement, that she notified the district that the school was closed and that she received no reply from the district. She stated her intent to enroll at the school and seek reimbursement. She did not state her intent to seek reimbursement for any related services or other services.
The parent is seeking reimbursement for the portion of tuition at (Tr. p. 217). She is also seeking reimbursement for services rendered by Ms. and Ms. . (Tr. p. 218).
is a special education program located within a mainstream located in . (Tr. p. 84; Par. Ex. B.). Classes range in size from to teachers; and the teachers employ a approach. (Par. Ex. B).
, a certified special education teacher employed by , testified that she evaluates students for admission, hires staff, places students in classes and designs the academic curriculum and staff development. During the 2010/2011 school year, had five special education classes. The school employed special education teachers, assistant teachers and consulted with a from . (Tr. pp. 85-86). was placed in a class with children in through grade. (Tr. p. 109).
Before entered , staff from came to look at to see if they were comfortable with transitioning . (Tr. p. 105). On November 24, 2010, prepared an IEP for , with the participation of , an therapist from . (Tr. p. 111). Ms. was at three or times in the fall of 2010. (Tr. p. 112).
In December 2010 or January 2011, at the request of , staff from came to design a system for class. (Tr. pp. 107-108). She testified that they wanted someone who knew well to “fine tune” the system, so it would be effective. (Tr. p. 108).
Ms. testified that was provided a program with a strong focus on listening skills to address his . He is instructed in sight reading in his regular classes and reading comprehension. (Tr. p. 88). class started out with students in September 2010; and increased to students in January. (Tr. p. 89). His language arts and math teachers were New York State certified special education teachers. (Tr. pp. 9192). program included two times per week, an two days per week; and twice per week. (Tr. p. 124; Par. Ex. H). These related services were included in his tuition. (Tr. p. 122). had lunch in the mainstream lunchroom, where he learned to wait on line, ask for what he needed, and get his own napkin and silverware. (Tr. p. 93). also interacted with typical peers during recess and for parties. (Tr. p. 94).
Ms. testified that prior to coming to , was instructed on a basis. At he was placed in learning situations that were “ ”. (Tr. p. 95). program utilized a goal card, with which he earned special activities every half hour for he was working on, such as , before he spoke, and answers. She testified that he made progress in . In math, he progressed from a level to a solid level. (Tr. p. 97). also made progress in expressing when something his bothering him and in problem solving. Parent training consisted of IEP meetings twice per year, a parent‟s day, and email communication at least three times per week about progress. She testified that provided with an appropriate program. (Tr. pp. 99-100). She testified that thirty to forty per cent of his day is devoted to studies. (Tr. p. 103). [5]
Ms. testified that in language arts, was functioning at a level. (Tr. p. 116). She testified that the other students in the class were also at a level, give or take six months. (Tr. p. 118). In math, he was functioning at a grade at the beginning of the year. (tr. p .120). The other students functioned within a few months of his level. (tr. p. 121). The students in the class range in age years. (Tr. p. 122).
She testified that the program is a ten month program; which is appropriate in light of the fact that the parents provide what he needs during the summer months. (Tr. p. 131).
, a certified special education teacher testified that she is working toward her certification as a , (Tr. pp. 160-161). Since 2006, she has been employed by as a senior , and has worked with since that time, in home and school settings. During the 20102011 school year, she worked with him, for two to four hours per week, using (“ ”) methods and incidental teaching. (Tr. pp. 162-163, 174). She also assisted with his transition to , by visiting the school and communicating with staff there. (Tr. p. 164).
She went to the school twice per month, from September through January or February, and remained at the school for at least four hours per visit. (Tr. p. 182). The parent was not charged for this service. It was provided by . (Tr. p. 183-184). She testified that needs home services to learn functional skills in his home, and to generalize skills learned at school. (Tr. p. 165).
Ms. teaches skills such as reading a menu, following directions to do a science experiment and making food from a recipe. She also takes him into the community and they work on in various settings. They also work on in the playground. (Tr. p. 166). has made progress in his ability to initiate play on the playground. (Tr. pp. 168169). She provides training to the parents in providing for , and in increasing his independence at home. (Tr. p. 170). She also teaches his siblings how to communicate with him when they are playing. (Tr. p 172).
, a certified , testified that she has worked for since 2005. (Tr. p. 187). During the 2010-2011 school year, she provided services to approximately four hours per week in the community, the home and various environmental settings. She was compensated for her services by the parents. (Tr. p. 188). They did various recreational activities including tennis, swimming, soccer and football to develop his skills while communicating and interacting with peers. (Tr. p. 189). Some of these activities were within organized groups, such as a tennis social skills group, a football group and a soccer group. She testified that she worked on teaching him to concentrate, increasing his strength and endurance. (Tr. pp. 194, 197, 200). She billed the services as . (Par. Ex. M).
She also helped the parents by showing them various activities that would help more, to help him in the morning. (Tr. p. 190). She testified that as a result of her work with , he is able to function and interact more appropriately during social interactions. (Tr. pp. 191-192). Ms. provided services to between July 2010 and June 2011. (Par. Ex. M).
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).
I find that IEP, which includes a in a Specialized School (District ), with a staffing ratio of , with related services of Therapy (5 x 30 individually) (5 x 30 individually) (2 x 30 individually); , twice per week; once individually and once in a group of two; a and Twelve month programming provides an appropriate educational plan for . IEP adequately described his levels of functioning, and includes goals for reading comprehension, vocabulary, math calculation and problem solving skills, reading (decoding), basic math skills, receptive and , and leisure skills, skills. While the IEP does not include goals, I find that this omission does not constitute a denial of FAPE. See A.C. and M.C. on behalf of M.C. v. Chappaqua Central School District, 553 F. 3d 165 (2d Cir. 2009). Furthermore, I find that the parent participated meaningfully in the CSE review with her advocate and service providers. The record indicates that the only area of disagreement with the IEP was the parent‟s request for instruction. Nevertheless, the parent placed in a school which did not provide him with instruction, and presented testimony that he made educational progress in that setting. Based upon the testimony of Dr. , I find that IEP could have been implemented at ( ); and that could have derived an educational benefit from the program at the recommended site.
Nevertheless, I find that the parent was not notified of the location of the recommended school until on or about July 13, 2010, after the school year had already commenced. Therefore, I find that the DOE failed to meet its burden of proving that it provided with a timely appropriate placement. 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).
While the parents are not held as strictly to the standard of placement in the least restrictive environment as school district, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. M.S. v. Bd. Of Educ., 231 F. 3d 96 (2d Cir. 2000).
I find that the parents failed to demonstrate that the School provided with an appropriate educational program designed to meet his unique needs. Significantly, although the record indicates that has delays, fine delays, as well as difficulties in the area of , the school provides only two sessions per week each of and , and no . There is no indication that the school provides parent training, (other than one parent‟s day per year, and two IEP meetings.) Furthermore, while were identified in his January 2010 IEP, the school did not develop a behavioral program for and his class until December 2010 or January 2011.
While the parent supplements the school program with additional services from Ms. , and Ms. , the services described by Ms. consist of assisting the family in providing with recreational opportunities; and it is not clear that they address his significant needs. There was no evidence that the parent provides additional therapy for . Finally, the distance from home to his school (one hour and ten minute ride each way) is a factor which contributes to its lack of appropriateness. 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. 08084.
After reviewing the entire record, I am compelled to conclude the parent did not cooperate with the school district throughout the process to ensure that received a FAPE. At the January 20, 2010 CSE review, the only objection raised to IEP was that it did not provide instruction. At the impartial hearing, however, she presented evidence that she was seeking a less restrictive environment for , and in fact placed him in a school where he is educated in groups of children.
Furthermore, while there was some initial confusion about the location of the recommended site, the CSE promptly wrote to the parent on July 13, 2010, clarifying the location of the school, and providing the name of two contacts. The parent however wrote back to the CSE, on August 11, 2010, stating that the school was closed and she could not observe it. At the hearing, she testified that she did gain access to the school; but that the class designated for was not in the building. She did not return to the school to see the class.
One week later, the parent provided a 10 day notice of her intent to place at the school and seek reimbursement based upon the failure of the school district to reply to her notification that the school was closed.
Finally, while I find that the DOE failed in its obligation to timely identify the location where IEP would be implemented, as of July 13, 2010, the issue was clarified, and the recommended site was capable of implementing IEP. As was not enrolled in a school program until September 2010, the parent could still have availed herself of the recommended placement
ORDER
For all of the foregoing reasons, it is hereby ordered that the parent‟s request for tuition reimbursement is denied. Dated: December 9, 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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT DESCRIPTION
A Impartial Hearing Request, 7/8/11, 5 Pages B Program Description, 4 Pages C IEP, 1/20/10, 22 Pages D Final Notice, 2/4/10, 2 Pages E Final Notice, 6/22/10, 2 Pages F Final Notice, 6/22/10, 2 Pages G Ten-Day Notice, 8/18/10, 2 Pages H 2010/2011 School Year Class Schedule, 1 Page I 2010/2011 School Year Tuition Contract, 1 Page J 2010/2011 School Year Proof of Payment, 6 Pages K 2010/2011 Affidavit of Payment, 1 Page L 2010/2011 Proof of Payment for Services, 6 Pages M 2010/2011 Proof of Payment for Services, 23 Pages N 2010/2011 Proof of Payment for Services, 31 Pages O 2010/2011 IEP, 22 Pages P 2010/2011 School Progress Report, 4 Pages Q 2010 Reading and Math Assessments, 2 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 Observation, 1/15/10, 1 Page 2 Worksheet, 1/20/10, 1 Page 3 Invitation to Review, 1/8/10, 2 Pages 4 Final Notice of Recommendation, 6/22/10, 1 Page 5 DOE Letter, 7/13/10, 1 Page 6 Final Notice of Recommendation, 6/22/10, 1 Page 7 Final Notice of Recommendation, 8/5/10, 1 Page
IMPARTIAL HEARING OFFICER DESCRIPTION
I Case Extension Follow-up Sheets, 3 pages
Footnotes
[1] The parent‟s claim for reimbursement for services was subsequently withdrawn. (Tr. p. 159). The parent does not dispute that requires twelve month programming. (Tr. p. 132).
[3] Although was recommended as a related service, the IEP does not include goals. This issue was not raised in the due process complaint, or in the course of the hearing.
[4] On July 13, 2010, the Department of Education (“DOE”) sent the parent a letter informing her that moved to in . A telephone number was provided, together with the name of two individuals who could be contacted for an appointment for a site visit. (DOE Ex. 5).
[5] The parent defined as that portion of his day devoted to (15 minutes per day); (one-half hour per day; with forty-five minutes on Fridays; and reading; one half hour per day). attends school for seven and one-half hours per day on Mondays through Friday; and for five and one-half hours per day on Fridays. (Par. Ex. H, P).