NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
1
Cover Sheet
Finding of Fact and Decision
DOB:
District 4
Request by
Dates of Hearing: September 24, 2010; October 25, 2010; December 7, 2010
IHO: Robert Briglio
Date: January 31, 2011
Hearing Officer's Finding of Fact and Decision
Introduction
This hearing was requested on June 29, 2010, by , parent of the student, . The hearing was requested, pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.), §1415 (f), because the parents disagreed with the special education recommendations of the New York City Department of Education (DOE) for .[1] An Amended Due Process Complaint Notice was filed on behalf of the parents on July 9, 2010, by , , the representing the parents in this matter. The amended hearing request alleges a failure by the DOE to provide with a free appropriate public education (FAPE) for the 2010/11 school year and seeks Nickerson authorization or prospective funding for the student to attend an approved - school at the ( ) for the 2010/11 school year. I was appointed to hear the matter on June 29, 2010, by the DOE Impartial Hearing Office, and following an unsuccessful resolution period (20 U.S.C. §1415[]) after the filing of the Amended Due Process Complaint Notice, a hearing was scheduled for September 24, 2010.
The hearing continued on October 25, 2010 and December 7, 2010.[2] Appended to the record are lists of the persons in attendance and the documents received in evidence.
Background
is years old. During the 2009/10 school year, he attended the at School ( )
as a . He continued in that program during the 2010/11 school year.
A Psychological Report, dated December 17, 2009, reported that adjusted to the at , and his was seeking a re-evaluation. The Report notes that appears academically capable but he , frequently in a and oppositional and occasionally manner. The student was recently at the time of the report and boards in the main of the school. He was and taken to the as a result of the . The report indicates that had other toward including, a , a at his , an the missing a . He also had with other .
was on at the time of the testing. He was extremely and did not follow instructions to used in the testing as requested. Although reportedly desired to do well, he was and to complete some responses. The student was described as having given his best effort and the testing results were described as reflecting his and and .
The Psychological Report describes as bright and academically capable of succeeding in school and . He is described as immature and unable to his when or . He becomes and toward . He lacks social skills to interact appropriately with peers. Overall he is and .
has the capacity to act appropriately at times and functions best in a structured environment.
See Exhibit F
On January 29, 2010, the DOE Committee on Special Education (CSE) met to make recommendations for . The CSE recommended an Individualized Education Program (IEP) that classified with .A Class ( ) in a school was recommended on the IEP. Academically, was described as needing structure and guidance to perform in class. ‟s social/ needs include that §200.5(j)(5).
when , and he regarding these . He and is with and . He can lose control when . has making in his present program. He has engaged in several . Goals on the IEP addressed ‟s need to his when , complete grade curricular requirements, and increase home work completion rate. A was considered too and an not supportive enough on the
IEP. Exhibit C
On March 19, 2010, the CSE again made IEP recommendations for . The CSE continued to recommend that be classified with . The IEP program recommendation was returned to a general education program with education ( ), five periods per day direct in a separate location and 25 periods per week of ( ) support and , which was the student‟s IEP recommendation at the start of the 2009/10 school year. Exhibit
A Child Checklist form was filled out by ‟s on June 1, 2010. It indicated that got along with , parents, and peers than other children his age. was failing history, math, and science and performing average in English, according to the parent. Parent included that demonstrated , , and ( ) with and . occurring very often included a lot, to things, little that enjoys, to concentrate and pay for long, having , can‟t still, a lot of , things belonging to , at , at school, doesn‟t feel after , at and school, others are to get , or , is , and , is not by other , at , is , or , has , among other . Exhibit H
‟s grades for the 2009/10 school year at included 78% in English, 67% in Social Studies,
60% in math, and 70% in science. He scored a 70% (passing grade) in the Algebra Regents Exam and 81% (passing grade) in the Science (Living Environment) Regents Exam. He earned 11.7 credits for the 2009/10 school year. Exhibit W
A from for , dated June 17, 2010, reported that continues to with compliance, respecting authority figures, his academic performance has declined, and he is resistant to curfew. continues to exhibit and to view material. Treatment progress and progress toward are described as minimal. Individual two times per week is recommended. Exhibit I
A Letter from described a of from June 11, 2010, to around
July 7, 2010. The letter indicates that a placement may be an appropriate referral for . Exhibit J
A letter from , dated July 19, 2010, from ‟s
stated that was to manage, , and routinely and . He required frequent re-direction and needed to assist in managing his . Because of a history of unsuccessful coupled with ‟s presentation at , it was recommended that be placed in a . Exhibit K
A Evaluation was conducted of , dated August 4, 2010. was diagnosed with a , ,
Combined Type with social, academic, and . Because of the student‟s , , and and of an plan to meet his needs, a recommendation was made for to attend a , - to allow for a more structured and setting to ensure ‟s and of others. Exhibit L was at from August 11, 2010, to August 20, 2010. A letter from describes a prior a of at for of and a long history of . The letter also describes a long history of being toward his , and in the , and leaving the without permission. is reportedly functioning on grade level, according to the report. He acts toward peers in school and has been several times. Upon admission to the unit, had of and with his , and it was to him at such times. When engaged in group activity, of . The report indicates that ‟s progress during the demonstrates that can be successful in a structured and environment. His team supports the parents‟ decision for . Exhibit M
A Social History Update, dated September 29, 2010, was conducted by the DOE CSE as a result of the parents‟ disagreement with the DOE recommendation for to continue in his current at . The parents are requesting that be placed in the program at . The report notes that the student‟s believes a placement is needed because of ‟s , , and - , which includes things in the and leaving without permission. has been repeatedly for these , according to the parent. An for ( ) complaint was made by that alleged he was , , and by his . Exhibit 2 A teacher progress report from in October, 2010, described as not demonstrating any extreme and demonstrating a desire to learn and display knowledge in Freshman English class during the 2009/10 school year. He scored between 70 and 90% on most vocabulary quizzes. He was able to write paragraphs on tests with extended time and assistance from his . His writing was described as but contained information of value connecting class and reading material, and he scored in the 70% range. ‟s greatest asset is the ability to retain information heard, and he demonstrated exceptional class participation. He earned a grade of 76% for the 2009/10 school year.
first appeared in class for the 2010/11 school year on October 8, 2010. Exhibit 6
On October 6, 2010, the DOE CSE met to develop an IEP for for the 2010/11 school year and to consider additional reports generated subsequent to the previous IEP recommendation.[3] The IEP that was recommended classified and recommended general education with from a District 75 school with from a . Related services recommended on the IEP included one time per week for 40 minuets n a group of 5. Test accommodations on the IEP included time and one half, use of a calculator, and location. A school recommendation was rejected as too restrictive and regular classes as not supportive enough. Related services on the IEP included counseling, one time per week for 40 minutes in a group of 5. (Exhibit 1)
‟s parents disagreed with the DOE recommendation on October 6, 2010, and seeks placement of the student in a at for the 2010/11 school year.
Position of the Parties
DOE Position
The DOE contends that it provided with a free appropriate public education (FAPE) by virtue of the October 6, 2010 IEP recommending a general education program with , a , and to be provided at .
The student is motivated to succeed academically in the recommended program and is able to work independently and catch up on missed assignments. According to the student‟s , she has no issues with ‟s . He has matured, is focused on the tasks in class, and is performing on grade level academically. The teacher opined that the student‟s current program was meeting his academic and social/emotional needs and that a residential program is too restrictive for . The student‟s counselor at opined that is successful in his present placement, is maturing, likes attending school, feels good about himself in school, and wishes to attend college in the future. A change in placement to a residential program would be unfair to under the circumstances. ‟s English teacher also supported continuation of the present placement at because is capable of performing well, has substantial prior knowledge, and participates enthusiastically in class when he attends.
The DOE contends that is not an appropriate placement for . The school uses a tutorial approach and computers to do most academic instruction and functions well in a traditional
August 4, 2010 Psychiatric Evaluation.
classroom setting where he can prepare to attend . occur at , and he is on task and learning for the most part in school. A placement is inappropriate and not the ( ) that can meet the student‟s needs.
The DOE contends that prospective tuition payments by a school district for the placement of a student by parents in a private school pursuant to the court decision in Connors (infra) is limited to specific circumstances according to the State Review Officer (SRO) and those circumstances are not present in the parents‟ request for relief in this matter.
See DOE Closing Argument
Parents‟ Position
The parents contend that the DOE denied FAPE for the 2010/11 school year by placing the student in an with District 75 in a general education School. The recommendation is procedurally and substantively
The DOE contention that the parents‟ request for a residential placement is inappropriate because ‟s occur of school and are separate from the educational setting is inconsistent with the record in the case and erroneous as a matter of law. Because the student‟s social/ and impact the student‟s attendance in school, they are related to the student‟s educational needs and must be considered in making recommendations for .
In making an IEP recommendation for on October 6, 2010, the DOE CSE failed to re-evaluate the student, which resulted in a denial of FAPE. The student‟s several hospitalizations following the December, 2009, DOE Psychological Evaluation and teacher reports previously relied on by the CSE required the DOE to have the student re-evaluated. Specifically, the failure to consider discharge reports and perform a classroom observation and ( ) with a ( ) resulted in a denial of FAPE.
‟s improved in school reported by the DOE is not supported by the record of his in school and his academic performance in the 2009/10 school year. ‟s record from the summer of 2010, and psychiatric evaluation in August, 2010, reflect that remained extremely oppositional, defiant, and lacking in insight and judgment.
The parents‟ choice of as a placement for for the 2010/11 school year is appropriate.
reports, the August, 2010, Psychiatric Evaluation, and the opinions of the student‟s and support the placement at . is a State-approved private school for children with like and other students with special needs. The school‟s educational and are effective in modifying such as .
The school teaches students independent living skills, provides vocational services and opportunity for extra curricula activities in addition to academic instruction and .
The parents‟ request for funding of the tuition at is appropriate pursuant to relief available from the U.S. Supreme Court precedent in the Burlington case (infra) and the Connors case (infra)
providing for prospective payment of tuition to an approved private school where a child would otherwise be denied a FAPE. and the parents demonstrate the are unable to pay the tuition and seek reimbursement.
There are no equitable considerations that preclude the parents‟ request for payment in this case, according to the parents, because they consented to all evaluations and actively participated in the placement process.
See Parents‟ Post-Hearing Brief
Findings of Fact and Conclusions of Law
Legal Framework and Standard[4]
The I.D.E.I.A. mandates that participating States provide students with disabilities a free appropriate public education (FAPE). FAPE requires special education and related services tailored to meet the unique needs of a particular student and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S.Ct. 3034, 3037-38 (1982) Moreover, the law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998)
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walzczak, supra at 122 citing 20 U.S.C. §1401(a)(20)
Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S.Ct. 528,532 [2005]) Moreover, parent‟s participation at IEP meetings must be “meaningful”. (Deal v. Hamilton County Board of Education, 392 F.3d. 840,853 (6th Cir. 2005) Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing.
Schaffer, supra 126 S.Ct. at 532
Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S.Ct. at 532 citing Rowley at 206; M.S.
v. Board of Education of the City School District of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000)
With respect to a determination of the appropriateness of a school district IEP recommendation, Congress now requires that a hearing officer render a decision on substantive grounds based on a determination of whether the child received a FAPE. Where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child‟s right to a FAPE, significantly impeded the parents‟ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20
U.S.C. §1415 (f)(2)(E)
Where there has been a failure to provide FAPE to a child, the U.S. Supreme Court has held that a parent may be entitled to reimbursement for services obtained privately if the private placement is determined to be appropriate under the IDEA and the public school recommendation was inappropriate.
School Committee of Town of Burlington v. Department of Education Massachusetts, 105 S.Ct. 1996
(1985)
The federal district court in the Southern District of New York has held that parents who cannot afford a private school placement for which tuition reimbursement is otherwise appropriate under the IDEA may be entitled to prospective payment of the private school when the parents demonstrate they cannot afford the placement. Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y.
1998); see also, Draper v. Atlanta Independent School System, No.07-11777 (11th Cir. 2008), holding that a parent need not place a child in a parental placement and seek reimbursement only under Burlington but may also seek prospective payment for an appropriate program as compensatory education for the school district‟s failure to provide FAPE.
The legal standard to be applied to a parental request for tuition reimbursement from a board of education for special education services provided pursuant to a parental placement of a child in private school is set forth in U.S. Supreme Court precedent as modified by amendments to the IDEA at §1412 (a) (10) (C). If the services offered by the board of education are inadequate or inappropriate, the services selected by the parent are appropriate, and equitable considerations support the parent's claim, reimbursement should be granted. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); see also, Florence County School District v. Carter, supra, 510 U.S. 7 (1993).
A determination of appropriateness of the unilateral placement is made by considering whether the placement is reasonably calculated to enable the child to receive educational benefits and likely to produce progress, not regression. Frank G. and Dianne G. v. Bd. Of Educ. Of Hyde Park, 459 F3d 356 (2d Cir. 2006)
The requirement that children with disabilities be placed in the least restrictive environment applies to unilateral placements by parents. P.J. v. State of Connecticut, 788 F.Supp. 673 (D. Conn.
1972) However, that requirement must be balanced against the requirement that each child with a disability receive an appropriate education. Briggs v. Bd. of Ed. of the State of Connecticut, 882 F.2d 688 (2d Cir. 1989) See also Frank G., supra, holding that a parents‟ unilateral placement will be reimbursable if reasonably calculated to address a deficit area even if the placement is not in the child‟s least restrictive environment.
Reimbursement sought for a private placement must be reasonable. (See Carter, supra, 510 U.S. 7 at 16) The parents bear the burden of proof with respect to the reasonableness of the services they obtain for their child. See Schaffer, supra, at 536-7.
Appropriateness of the October 6, 2010 DOE Recommendation for
Burden of Proof
The DOE bears the burden of proof with respect to the appropriateness of its recommendation for for the 2010/11school year. (New York State Chapter 583 of the Laws of 2007)
I find that the DOE has not met this burden with respect to the recommendations it made for for the
2010/11school year to the extent described below.
Appropriateness of DOE Evaluations and Reports Considered at the October 6, 2010 CSE Meeting
The parents contend that the October 6, 2010 IEP is inappropriate because it was not based on current assessments of the student‟s needs, including a FBA and classroom observation. I
disagree.
The DOE was ordered on September 24, 2010, to consider reports and evaluations regarding the student‟s in the summer of 2010 and an August, 2010 private Psychiatric Evaluation provided by the parents at a CSE review on October 6, 2010, which meeting in fact took place. (Tr.
25) Contrary to the parents‟ contention, the Psychological Evaluation considered by the CSE from December 2009 (Exhibit F), describing the student‟s intellectual and academic functioning was sufficiently timely and descriptive of the student‟s needs. See 34 C.F.R. §300.304; 8 N.Y.C.R.R. §200.4 (b)(1) (ii)
While there was no Classroom Observation at the October 6, 2010, CSE meeting (8 N.Y.C.R.R. §200.4[b][1][iv]), I find that this did not deny the student FAPE as the student had only attended school for a few days in the 2010/11 school year and substantial observations of the student‟s attendance in school in September, 2010, and during the 2009/10 school year were provided by the student‟s teachers and providers at the October 6, 2010, CSE review. (See Tr. 29;
101; 67; 143) I find these observations more than sufficient for a determination of the student‟s functioning in a classroom setting.
With respect to the need for a FBA, I find that there was no evidence of the need for a FBA after March, 2010, when the student‟s in school improved significantly through September, 2010, when the student returned to school at . In any event, I find that the failure to perform an FBA did not impede the right to a FAPE or cause a deprivation of educational benefits, where as here the parents had no interest in pursuing the public school recommendation. See 20 U.S.C. §14125
(f)(3)(E)(ii)(I)&(III)
Substantive Appropriateness of the October 6, 2010 IEP Recommendation
I find that the October 6, 2010 IEP recommendation for for a general education program with SETSS from a District 75 school with para support and counseling provided at is in and of itself inappropriate to meet the student‟s needs at present. I find that the student‟s IEP must include provision for special education instruction when the student is and unable to attend the regular instruction at given evidence that such hospitalizations are recurring. Otherwise, I find the recommendation for instruction in the public school appropriate.
Appropriateness of the Inclusion Program at
I find that the DOE recommendation for a District 75 inclusion program with SETSS, para support and counseling was adequately supported by the information before the CSE on October 6,
2010.
The record reflects that had substantial social/emotional and issues after he entered
High School at in the 2009/10 school year that included several suspensions and which incidents continued to approximately March, 2009. Thereafter ‟s in school improved and he passed his courses achieving 11.7 credits and passing two regents examinations. (Exhibit W)
The school psychologist, Ms Feurstein tested the student, and observed formally and informally. Ms. Feurstein participated in the CSE review on October 6, 2010. was described by Ms.
Feurstein as bright, verbally capable, and interested in the curriculum. Ms. Feurstein‟s observations of in the classroom were confirmed by the student‟s teachers. (Tr. 147) However, also had issues, including aggressiveness with students and staff, losing control, and problems relating to peers. was re-evaluated by Ms. Feurstein in December, 2009, for placement in a more restrictive setting because of issues occurring in the fall, 2009. Two incidents in the fall resulted in the student‟s . Tr. 148
The January 29, 2010 IEP recommendation for a special class, special school recommendation was appropriate when made, according to Ms. , but the recommendation became unnecessary when the March, 2010 IEP recommendation was made for the . was for the most part more social, capable of handling social , and the responsibilities of class work in a general education setting by March, 2010. Tr. 150-153
The CSE meeting for on October 6, 2010, included consideration of additional teacher reports and psychiatric reports and evaluations submitted by the student‟s parents.[5] The DOE representatives at the October 6, 2010 IEP meeting, including ‟s English teacher, Mr. , education , Ms , and , Ms. , all agreed that ‟s social/emotional progress in school, intellectual and passing grades made the with and appropriate to meet the student‟s needs. See Tr. 155; 161-162
The student‟s English teacher from for the 2009/10 school year testified that attended school most every day, was not a problem, and avidly participated in class, although he was not alert at all times, which information was conveyed to the CSE on October 6, 2010 as well as information contained in a progress report (Exhibit 6). (Tr. 105-109) The student‟s special education teacher, who taught in the 2008/09 school year and this (2010/11) school year stated that has become more in school and is not . He performs on grade level although homework is inconsistent. Ms.
conveyed this information at the October 6, 2010 CSE meeting in agreeing with the recommendation for the inclusion program at with five periods per week of , with and support. (Tr. 34-38)
Ms. , since the 2006/07 school year, participated at the October 6, 2010 CSE meeting. Ms. worked with on his social/emotional and issues in school. She reported that likes school and was responsive to counseling. provides with an environment where the students are goal oriented and many attend college, which goal aspires to. has improved socialization with other students and feels more accepted. Ms. conveyed her opinion at the October 6, 2010 CSE meeting that ‟s in school has improved, he is successful and feeling good about himself, and removing him from to a residential placement would be unfair. 66-67; 69-
70; 71; 76
I concur with the DOE participants at the October 6, CSE meeting that can succeed in the placement and the reasons therefore. See Tr. 161-162 at provided he attends the program consistently.[6] I agree with the opinion that it would be unfair to the student to ignore his social/emotional improvement and academic achievement at since the spring of 2010 by placing in a residential placement because of circumstances that are unrelated to his performance in school.
‟s Need for Special Education Instruction When I find that there was sufficient evaluations and reports before the CSE at the October 6, 2010, IEP meeting that ‟s social/emotional problems at home were sufficiently severe and resulting in repeated prolonged hospitalizations that special education services in the environment should be recommended on the student‟s IEP for periods when is and can‟t attend school. See 8 N.Y.C.R.R. §200.6(h).
Reports of the student‟s at and and the Evaluation by (see Exhibits J, K, M &
L) as well as information regarding the student‟s at the start of the 2010/11 school year (Tr. 67-68;
97) were sufficient for the CSE to address those periods of time that may be during the 2010/11 school year and unable to attend the at .
Accordingly, I find that the DOE must arrange to provide with two hours per day of special education instruction for any period that the student is during the 2010/11 school year and add this program to the student‟s IEP (see 8 N.Y.C.R.R. §200.6[h][2]) instruction shall continue until it is no longer needed or a new recommendation made.
Inappropriateness of the Parents‟ Request for a Placement
The law is clear that in order for a placement to be determined to be appropriate for a student with a , related to the student‟s need for such a placement must have some connection to the school environment. I find that in this case since approximately March, 2010, has functioned appropriately in school while his social/emotional functioning at has given rise to repeated unrelated to school performance.
Courts examining the circumstances under which a placement is appropriate for a student with a disability under the I.D.E.I.A. have uniformly required that giving rise to the need for a residential placement have some relation to the student‟s performance in school. Educational benefit is the “touchstone” in determining the extent of a school district‟s obligations under the
I.D.E.I.A.
Thus, a district is not required required to support a handicapped child in a residential program simply to remedy a poor home situation or finance foster care. Other resources must be looked into. Gonzalez v. Puerto Rico Department of Education, 254 F.3d 350, 353 (1st Cir. 2001)
citing Abrahamson v. Hershman, 701 F.2d 223, 227-228 (1st Cir.1983); residential placement may be required under the ID.E.I.A. when , social, or requiring create or are intertwined with the educational problem. Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997); residential placement is appropriate where and emotional problems (truancy, classroom disruption) must be addressed for the student to succeed academically Independent School district
No.284 v. A.C., 258 F.3d 769, 776-777 (8th Cir. 2001); a residential placement under the I.D.E.I.A. is appropriate where it is essential in order for the disabled child to receive a meaningful education benefit and where the program is primarily oriented toward enabling the child to obtain an education.
Richardson Independent School District v. Michael Z., 580 F.3d 286, 299 (5th cir 2009); see also, and do not impact on school behavior (see infra)
Ashland School District v. Parents of Student R.J.,585 F.Supp.2d 1208, 1230-1231 (D. Oregon
2008), residential program not required where child is not behaving parents or engaging in inappropriate sexual activity after school hours, especially where student is attending regular education classes.
It is clear from the cases that have addressed the issue that a residential program as requested by the parents in this case is not appropriate where the student is functioning appropriately in a regular education setting and has social/emotional and problems not manifest in or related to the school setting, a finding which I make as of approximately March, 2010. (See, supra) I take further notice that none of the experts who prepared reports or evaluations the parent submitted recommending a residential placement (Exhibits J, K, L & M; Tr. 126) contacted the student‟s school to explore how the student was functioning in school. See, Devine v. Indian River County School Board, 249 F.3d 1289, 1292-1293 (11th Cir. 2001) questioning parents‟ reliance on private evaluations recommending a placement for a student where the experts failed to contact the student‟s teachers or request school records and relied on the word of the parents for their recommendation.
I find that none of the cases cited to by the parents justify the relief ( placement) they seek in this matter.
The parents‟ reliance on Independent School District No. 284 v. A.C., 258 F.3d 769 (8th Cir.
2001) is misplaced. In that case, the student‟s manifest itself similarly in and school resulting in the student‟s and in school and her were not separable from the learning process. (Id at 776-
778) In this case, in contrast, the student experiences no , enjoys and engages in classroom activity, and his toward and has largely been . (See supra)
Similarly, in Escambia County Board of Education v. Benton, 406 F.Supp.2d 1248 (S.D.
Alabama So. Div. 2005) the student in that case exhibited substantial in school as well as necessitating a need to them in order for the student to obtain educational benefit. (Id at 1265-1266)
That is again not the case in this matter where the student has largely corrected in school while emotional/ issues at have resulting in increased and more . (See supra)
Finally, in Gonzales, supra, 254 F3d 350 cited to by the parents, the court found that a placement was unnecessary for the student to receive an appropriate education. The student‟s at were separable for learning problems, and parent training was sufficient to address any overlap between and school . (Gonzales, supra at 352-353) In this case, the student‟s issues are at present almost entirely to the , and he can function appropriately in a general education inclusion setting. The only nexus is that the student is being for stemming from , the extent of which prevents him from attending school. I find there is no basis under the I.D.E.I.A. justifying the provision of a residential placement by a school district under such circumstances.
Finally, I take note of the fact that the parents did not consent to the CSE IEP recommendation on January 29, 2010 for a more restrictive, special class (12:1:1), special school placement recommended to address the student‟s social/emotional and needs in school.
Rather, they opted to continue to have attend the inclusion program at , which I find supports a finding that the student‟s issues were focused at home, not in school. I also disagree with the contention that the parents exhausted all out-patient therapy available to address problems in the home. (See Exhibit L-3; Tr. 122) The record reflects that ‟s therapy includes individual and group sessions with peers, and there is no indication that any family therapy took place. (See Tr. 222-223; 328)
Appropriateness of the Parents‟ Placement7
It is the parents‟ burden to prove the appropriateness of the special education services sought for as compensation for the failure of the DOE to provide an appropriate special education program for the 2010/11 school year. In order to meet this burden, the parent must show that the services were proper under the Individuals with Disabilities Education Act. School Committee of the Town of Burlington, supra. The appropriateness of the unilateral placement is determined by whether the placement is reasonably calculated to enable the child to receive educational benefits and likely to produce progress, not regression. Frank G. supra
The requirement that children with disabilities be placed in the least restrictive environment applies to unilateral placements by parents. P.J. v. State of Connecticut, 788 F.Supp. 673 (D. Conn.
1972) However, that requirement must be balanced against the requirement that each child with a disability receive an appropriate education. Briggs v. Bd. of Ed. of the State of Connecticut, 882 F.2d 688 (2d Cir. 1989) See also Frank G., supra, holding that a parents‟ unilateral placement will be reimbursable if reasonably calculated to address a deficit area even if the placement is not in the child‟s .
I find the parents‟ placement choice at to be on the record before me. Apart from the fact that does not exhibit serious in school that are typically addressed at , I find that the placement is overly restrictive in any event. employs 1:1 supervision for 90% of its students. (Tr. 359) I find that level of is overly and inappropriate for given his social/ and needs as described in the October 6, 2010 IEP (Exhibit 1-5) and information regarding ‟s performance in school, particularly since
4 Although it is not necessary to consider the appropriateness of the parents‟ placement choice at , equitable considerations, and the appropriateness of prospective funding, because I have found that a placement is for the March, 2010. I further find that is academically for . benefits from a classroom where he can express himself and engage in class participation. He is also an . (Exhibit 6) employs a computer curriculum with substantial 1:1 instruction (Tr. 374), which I find inappropriate for . Accordingly, I find that placement at fails to satisfy the legal standard set forth in Frank G, supra
Equitable Issues
While I agree with the parents contention that they cooperated with the DOE in making recommendations for , that is not the end of the inquiry on equitable considerations. The cost of reimbursement for a parents‟ private school placement must be reasonable. (Carter, supra) I find that the cost of tuition at , approximately $241,000.00 per school year, is excessive given the student‟s ability to function in a general education class and lack of substantial needs in school. It can only be assumed that the cost of tuition at is related to the fact that students there generally require in and out of class which level of for is not supported in this record. See supra
Prospective Funding for the Parents‟ Choice of a School Placement
Prospective funding for a parents‟ private school placement pursuant to the Connors case (supra) requires a showing that the parents cannot afford to fund the private school placement and seek tuition reimbursement from the school district. No such showing was made in this matter.
Order
The parents„ request for prospective funding for to attend for the 2010/11 school year is denied without prejudice to the parents‟ right to seek such relief again if the student‟s social/emotional functioning and needs in school change.
student, I will reach those issues in the interest of efficiency because evidence was presented and heard.
The DOE CSE shall reconvene and add instruction two periods per day for those days that is during the 2010/11 school year and continue providing this service until the student‟s IEP is reviewed or the student‟s needs change.
All other requests relief are denied.
Dated: January 31, 2010
ROBERT BRIGLIO, ESQ.
` Impartial Hearing Officer
WITNESS LIST
September 24, 2010
For the Student
,
, Parent
For the Department of Education
, District Representative
October 25, 2010
For the Student
,
, Parent
,
,
For the Department of Education
, District Representative
, School
,
,
,
December 7, 2010
For the Student
,
, Parent
,
,
,
,
,
For the Department of Education
, District Representative
EXHIBITS
Parent:
Ex. Date Description pg.
A 7/09/10 Hearing Request 3
B 8/02/10 Due Process Response 4
C 1/29/10 IEP 13
D 3/19/10 IEP 13
E 9/15/09 Record School 2
F 12/17/09 Psychological Report 4
G 2/16/10 Update 4
H 6/01/10 Child Checklist 4
I 6/17/10 Treatment Plan 10
J 7/07/10 Letter from 1
K 7/29/10 Recommendation Letter 1
L 8/04/10 Evaluation 4
M 8/19/10 Letter from 2
N 7/21/10 Acceptance Letter 1
O 1/28/10 Educational Progress Report 9
P 2010 Article, & re 28
Q various Tuition 3
R undated Education Procedures 7
S undated Distinguishing Features 11
T 5/02 Positive Programming Procedures 16
U 1/05/82 Jose P. v. Almbach Procedures 12
V 7/08/82 Jose P. v. Almbach Order 5
W 9/8/10 Student Record 3 X 09/10 Progress Report 1 Department of Education:
1 10/06/10 IEP 14
2 various Social History update 4 3 various Global Studies & Algebra grades & policy 12 4 undated Gwth & Development Couse description 1 5 undated English 1 & 2 Description; Living Environ. Grades 8 6 10/13/10 English Progress Report 2
In the Matter of the Impartial Hearing of
NOTICE OF APPEAL RIGHT
TO STATE REVIEW OFFICER
& the New York City Department of Education
PLEASE TAKE NOTICE
Within 35 days of receipt of this decision, the parent and/or board 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. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and forms for filing an appeal can be obtained from the local school district or State Education Department and can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Footnotes
[1] The parent‟s Impartial Hearing Request is appended to the record as Hearing Officer Exhibit I.
[2] Extensions of time for a decision were granted pursuant to Commissioner‟s regulations at 8 N.Y.C.R.R.
[3] A CSE review was ordered at the hearing on September 24, 2010, to take place on October 6, 2010, in order for the CSE to consider a number of reports stemming from the student‟s hospitalization in the summer of 2010 and an
[4] Although the Individuals with Disabilities Education Act (I.D.E.A.) was amended in 2004 in the I.D.E.I.A., the cases cited herein remain authoritative.
[5] Although it is not clear the extent to which the CSE read from the parent‟s psychiatric evaluation and reports, the parents‟ attorney was present at the meeting and the CSE understood the parents‟ request for a residential
[6] Obviously Ishmael‟s family circumstances must improve in order for him to attend MCHS consistently. However, I have found that it is not the DOE‟s responsibility to address social/emotion issues that only are occurring at home