NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: Student‟s Name: Date of Birth:
District:
Hearing Requested By: Date of Hearing: August 26, 2010
November 15, 2010
November 17, 2010
January 13, 2011
January 14, 2011
February 1, 2011 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 26, 2010
Student
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 15, 2010
Student
Student
Student
DOE
@ (via telephone) — DOE
Education, and CSE — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 17, 2010
Student
Student
DOE
School, CSE (via telephone) — DOE
@ — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2011
Student
Student
Student
(via telephone) — Student
- School — Student
School, (via telephone) — Student
DOE
@ (via telephone) — DOE
— DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 14, 2011
Student
Student
Student
-, - School (via telephone) — Student
- School (via telephone) — Student
- School (via telephone) — Student
(via telephone) — Student
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 1, 2011
Student
Student
Student
- School (via telephone) — Student
and - School (via telephone) — Student
DOE
— DOE
INTRODUCTION
On August 26, 2010, November 15, 2010, November 17, 2010, January 13, 2011, January 14, 2011, February 1, 2011, an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education of a school-aged child, (“the child”). The first day of the hearing commenced at 11:40 a.m. and each hearing day thereafter commenced at 10:00 a.m. except for February 1, 2011, when the hearing commenced at 1:30 p.m. The hearing was held at the New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
The child, who is classified as having “ ” is years old and attends the School (“ ”). An annual review was held on March 4, 2010 and an Individualized Education was developed on that date. The Committee on Education (“CSE”) generated a Final Notice of Recommendation (“ ”) dated June 14, 2010. However, the never received the . On June 24, 2010 the faxed a letter to , the CSE Chairperson, advising him that had not yet received the . In that letter advised Mr. that was “open to” any programs offered by the Department of Education but that in the interim would place the child at the for the 2010-2011 school year and that would request . The did not receive a reply from Mr. or anyone in the CSE and did not receive an .
On June 30, 2010, the , by A. , Esq., filed a due process request for an impartial hearing. In that request, the maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 2010-2011 school year in that the Department of Education had not yet offered a for the child. The requested for the 12 month school year at , including costs. The also requested a pendency at for the duration of the impartial hearing ( ‟s Ex. A). The Department of Education filed a Due Process Response on July 8, 2010 ( ‟s Ex. B). Sometime during the week of July, Ms. obtained the and gave it to the . On July 19, 2010, the visited the proposed ,a class at @ . At that time, the class had students registered and attending school. In a letter dated July 22, 2010, the wrote a letter to at the CSE stating that the proposed was not appropriate for the child and that was placing the child at and would be seeing .
A pendency hearing was held on August 26, 2010 and Order of Pendency (“Order”) was subsequently issued. This Order directed the Department of Education to pay the at from July 1, 2010, the beginning of the 12-month 2010-2011school year, until the raised at the impartial hearing are resolved. On September 20, 2010 Ms. filed an amended due process complaint. In the amended complaint noted that the Department of Education‟s Due Process Response had indicated that an had been issued. The complaint stated that upon Ms. request the was forwarded to office and that the subsequently visited the recommended at @ and rejected it. The amended complaint asserted that the was defective for several reasons and explained why the believed that the recommended was not appropriate for the child and ( Ex. E).
The impartial hearing request was filed June 30, 2010 and I was assigned as the impartial hearing on July 1, 2010. A pendency hearing was held on August 26, 2010. On September 21, 2010 the filed an amended due process complaint. The revised resolution period expired on October 27, 2010 and the revised compliance date was December 13, 2010. The first two days of the hearing were held on November 15, 2010 and November 17, 2010. On November 17, 2010, an extension was granted at the request of the for the availability of witnesses and the new compliance date was January 12, 2011. Pursuant to a request by the on January 10, 2011 the compliance date was extended again for the availability of witnesses and the new compliance date was February 11, 2011. The next three days of the hearing were January 13, 2011, January 14, 2011 and February 1, 2011. On February 1, 2011, an extension was granted at the request of both parties for the submission of briefs and the compliance date was extended to March 13, 2011. Pursuant to a request by the on March 9, 2011 an extension for closing briefs and the Decision and Order was granted and the compliance date was extended to April 12, 2011. On April 12, 2011, pursuant to a request by the for the Decision and Order due to extensive testimony and the compliance date was extended to May 12, 2011. On May 12, 2011, pursuant to a request by the for the Decision and Order due to extensive testimony and the compliance date was extended to June 11, 2011. The Decision and Order was filed on May 23, 2011.
THE S’ POSITION
, Esq., represented the s at the hearing. Ms. alleged that the District did not provide the child with a FAPE for the 2010-2011 school year in that the Department of Education did not offer the child a in at timely manner and that the was defective. also asserted that the recommended was inappropriate for the child, that was an appropriate and that the equities favored the . Thus, posited that the District is required reimburse the for the at for the 2010-2011 school year.
THE DEPARTMENT OF EDUCATION’S POSITION
, Esq., represented the Department of Education at the hearing. Ms. asserted that the Department of Education provided the child with a FAPE for the 2010-2011 school year. Specifically, maintained that the Department of Education sent the an in a timely manner, that the child would have been able to attend the on the first day of school and that the recommended was appropriate. also argued that, in any event, was not an appropriate for the child and that the equities of the case favored the Department of Education.
THE EVIDENCE AT THE HEARING
THE DEPARTMENT OF EDUCATION’S CASE
is a New York State Certified School who has worked at the Department of Education since 1997; currently works at CSE In current position, observes students in classrooms, interprets assessments from “outside the DOE” and participates in both writing IEPs and in meetings. ( : 148-151).
On October 13, 2009, Ms. observed the child at for about 40 in anticipation of the annual review that was subsequently held on March 4, 2010. Ms. explained the purpose of an and why an is beneficial to the team at a CSE review ( : 151-152, 179).1 At the time of the , the class was ending and was about to begin . It was not a “particularly structured time” and at the of the the was “ the classroom putting to ,” which seemed to be a and “ .” Another , , pulled the and the provided comfort for . Ms. the child and the to the nurse‟s office to get a band aid, which seemed to soothe the child somewhat ( : 152-155, 183). When they returned to the classroom, the class had begun but the child did not participate “very ” and “ about the ” ( : 153). There was an with the child throughout the , both to maintain the focus and to comfort after the other student pulled . A teaching also had to support the child to incorporate into the music group and stayed with the child until the end of the music lesson; the child kept “getting up” and the would attempt to re-engage ( : 179-182; HO Ex. I).
Ms. participated as the school in the annual review on March 4, 2010 during which the was developed for the 2010-2011 school year, which began in July 2010. At that time the child was in an class at . Although the school is not graded, based on birth date the child would have been
Citations to pages 179-215 refer to Ms. cross-examination of the Ms. .
in grade ( : 155-156). The participants at the review were Ms. “ ,” , who participated as both the education and the District , , the at ,a member and the ( : 156, 184). None of the service providers appeared at the meeting either in person or by phone ( : 184).
Prior to the meeting Ms. reviewed the Report of dated December 2009, the from the prior year and classroom of the child. also reviewed the CSE file with the “ information,” specifically, the Sum by dated October 20, 2008, and the most recent reports. Based on this information, Ms. drafted page 4 and 5 of the , the /emotional and pages, and drafted page 3, the academic functioning page ( : 157-159; DOE Exs. 1, 4, 9; IHO Ex. I). The page of the , page 9, was taken from the prior so that the CSE can determine whether to modify, initiate or change any of the ( : 158).
At the beginning of the review all of the participants who appeared in person signed page 2 of the and Ms. wrote down the names of those persons appearing by telephone ( : 157; DOE Ex. 9). Neither Ms. , who appeared by phone, nor the , who appeared in person, was given any of the draft pages of the and Ms. was not provided with a copy of Ms. ‟s ( : 185). Rather, the draft of the was read aloud, “page per page, word for word, line for one” and every item was discussed ( : 157-158). Neither Dr. ‟s sum dated October 2008 nor any formal standardized testing was discussed at the meeting. Nor did the of the CSE discuss or refer to any formal and evaluation, evaluation , evaluation or medial report ( : 186-187).
Everyone at the review had input for every page of the and the pages were modified accordingly. The draft of the goals on the is based on the from the prior year. The team reviewed those goals and determined whether the goals had been met, whether they were ongoing or whether they needed to be modified in some way ( : 158). The team also reviewed the academic goals “one by one” with the and the , both of whom had a copy of the previous year‟s goals; those goals were modified with and input ( : 170). In particular, the provided input for page 3, the academic functioning and management needs page; those goals also reflected the information from the report each was reviewed ( : 158-159). The were taken from the goals by the as indicated on the Report of . None of the service providers participated in the review but Ms. “believed[d]” that some of the service goals were by the and the ( : 169). Ms. identified the that target fine motor skills as the goals stating that the child “will develop pre-writing skills” and the short-term objectives that “involve forming upper case letters, lower case letters and writing numbers one to ten” ( : 169-170; DOE Ex. 9 at75).
Based on the documents reviewed by the CSE, Ms. described the child as having significant receptive and expressive and in “pragmatic or ” that interfere with academic and functioning ( : 161). The child also had auditory processing in that when asked questions required some “wait time” to process the information. However, the child was able to communicate needs better than had in the past, by using “words and phrases.” was working on “sight words as opposed to decoding.” At the review, the stated that does not work on decoding and so the indicates that decoding is “not applicable” ( : 162-163).[2] The child also was not reading independently so the section for reading comprehension was “left blank.” In terms of listening comprehension, the child was functioning at a level between a “beginning to mid grade level.” The child was doing basic math computation on a “mid grade level.” Ms. testified that the child was not yet able to do “problem solving” because was not reading at a sufficient level ( : 163164).
The stated that was working on sight words as opposed to decoding and that they used “ ” for academics ( : 163). The use of is noted on the bottom of page 3 on the ( : 163-164). The / performance was discussed and “essentially” was able to be “ and .” However, can become “ ” by loud sudden noises or sudden movements, or when is unable to understand demands that are placed on . The “concerns” with had decreased as ability to communicate increased, but on rare occasions when was would pull . The child was also initiating more with s( : 164-165). The concerns with the are reflected at the bottom of page 4 on the under needs ( : 165). If the experienced increased , responded best to with an or having an take out of the classroom for a moment to “ ”( : 165166). The child also to and “access to .” The three main concerns discussed at the review were , on a and ( : 166).
A (“ ”) was not developed for the child because a discussion with the and the indicated that those do not with instruction and can be addressed by the education . Ms. noted that wrote the for the 2009-2010 school year and at that time the felt that a was not warranted because the “had only improved” and as was , the were ( : 166-167, 215).
The team recommended that the receive and every day. The only was that one of the be with a to . Individual of were mandated and of and were each a ( : 167-168).
The about the classification of “ ” because the child does not the that are common among students with . Both and and other classifications were considered and the expressed “uncertainty” regarding any change. Ms. stated that “at the time” there was a “consensus” that a classification of and did not “encompass other aspects” of the functioning, such as , with “novelty” and “ ,” but that “ ” did adequately describe the child.
According to Ms. “recollection,” both Ms. and the consented to leave the classification as “ ”( : 171-172, 188).
The CSE ultimately recommended a in a 1 class in a school. Both the and the Ms. had an opportunity to ask questions and voice any concerns. Ms. believed that the recommendation was appropriate and that the CSE team had sufficient information to make an appropriate educational determination for the child ( : 173-174).
Ms. explained that never has a sign the of a CSE meeting (“ ”) because is “not comfortable with” the implication of a signing the form. did not show the to the after the meeting and did not ask the to review the to see if agreed with the statements contained therein ( : 183-184).
The goals in the December 2009 Report from reflected the goals the school put in place for the 2009-2010 school year. Ms. explained how what appeared to be the same goals on both that report and the developed on March 4, 2010 were actually ( : 189-190). For example, a prior word recognition goal of recognizing “ relevant ” was changed to recognizing “ ”( : 190-191; DOE Ex. 9 at 6). The math goals in the indicate that the child will identify a ,a and a dime. This goal is the same as the one in the Report because Ms. indicated at the meeting that the goal should be “ongoing” because it would “take a significant amount of time for the child to master it ( : 196-197). Ms. noted that the CSE team went through the goals “one by one” and that they seemed appropriate in that the child had not made significant in certain areas and that in those areas the goals “should remain”” ( : 216-217).
With respect to the , the differences between the goals on the Report and those on the are either discrete or unchanged ( : 205-214). Ms. testified that the service goals were “discussed” with Ms. and the at the meeting and that the goal needed to be ongoing. did not ask Ms. whether was qualified to draft goals for the and did not ask to speak to the or the at to revise or update their goals ( : 206-209). According to the of the meeting, the goals were modified from individual 30-minute a week to individual 30-minute a week and one session 30-minute session with two students. Ms. did not recall whether it was the or Ms. who requested the ( : 214-215; DOE Ex. 2 at 17, 9 at 17).
has been the special education and for CSE for seven years. Prior to that position was a in District 4, an educational evaluator, and a of both the deaf and hard of hearing and learning disabled students; has worked for the Department of Education for 31 years ( : 113-114). Ms. described current duties and responsibilities and explained the process and procedure by which finds placements for students ( : 115).
explained that office receives a Case Referral Form (“Referral”) from the CSE ( : 121; DOE Ex. 10). 3 On the day the case is reviewed, types the handwritten information on the Referral into a form that is “already on the system,” and then emails the referral and the student‟s to the District 75 for the particular borough. He also “cc‟s” Ms. ( : 115, 120-121). The District then sends back a and Mr. generates letters to mail with the recommended school ( : 115-117). Ms. ‟s office usually receives the within a week unless it is “deferred.” In the case the was deferred. Ms. ‟s office received the recommendation on June 14, 2010 one day before the “compliance date.” Mr. mailed the original to the on that date and a copy was kept in the file in the record room and in office ( : 117, 122-123, 127). There was no class designation on the ; rather, it only indicated the school that was offered ( : 124).
Ms. explained that “every day” Mr. puts such letters in envelopes and brings them to the mail room at the CSE where another employee the letters and brings them to a once or twice a day, always before 3:00 p.m. ( :
Citations to pages 120-129 refer to cross-examination of the witness.
118, 125-126). If a letter is “returned,” Ms. ‟s office “double check[s] the address” and re-mails it. If a letter is mailed a note indicating the letter and the date is made and kept in the record and in the office ( : 128). Ms. testified that there is no record indicating that the mailed to the was returned because of an incorrect address. Ms. believed that the established process and procedure was followed in this case ( : 119, 127-128).
Ms. spoke to Ms. the week before the impartial hearing and Ms. ‟s office then “double checked the address information” and the information on the . office verified that the information was the same as that in the dat se system (“CAP”) and that the address of the and the notification was reflected properly on the ( : 116).
Ms. explained that if a wrote a letter to Mr. indicating that had not received a offer, Mr. would give the letter to and would make sure an was generated in a timely fashion ( : 129). Ms. did not have a copy of such a letter from the and had no record of sending out a letter to the family ( : 129).
has been in education for ten years, seven of which have been at the School, Since January 2010 has been an at the school. Prior to becoming an was a “positive coach” at that school and before that taught students with emotional disturbance and . Ms. has an undergraduate and Master‟s Degree in early childhood special education and a degree in administration. is certified in both early childhood special education and in administration ( : 29-32, 66).[4]
The School has sites, one of which is at ; the school shares a facility with two other schools, . and ”[5] That site is relatively small with about 100 students in pre-K through fourth grade, and has classes with ratios 12:1:1, 8:1:1, and two pre-K classes with a ratio of 8:1:2.
The mission of the school is to target students on their appropriate levels and move them forward so they can function in society to the best of their ability ( : 33-34, 68, 7779).
Ms. is assigned to at and is there every day but sometimes goes to another site as well. The site has two , two , three full-time , one , once guidance counselor and a school ; the and guidance counselor do the . The providers are meeting the mandates of the students at the school ( : 50-51, 75-76). Each of the providers has own room and the third provider shares a room with the inclusion coordinator; the majority of the time the is in that room by himself ( : 77). The and the share a space the size of half a classroom. The work out a schedule for the use of their spaces that does not violate the mandates of any of the students ( : 80, 103). The counselors each have their own individual office ( : 81-82). The school also has a full time coach to support the , the students and the administration in developing the “ ”; the coach is regularly scheduled at the school once each week for individual and group with the , but on occasion has come to the school two or three times in a week if needed ( : 52-53, 83-84). Although the school does not have a , the has equipment to use in ( : 65-66).
Referring to the dated March 4, 2010, Ms. testified that “believe[d]” the school would have been able to provide the child with the mandated on the . explained that if “for some reason” the school could not have provided the , it would have issued a letter so that the could obtain the outside of school ( : 51). As of the date testimony, all of the students in the classes were receiving their at the school ( : 51-52).
Ms. met the sometime in July 2010 when the and someone from came to visit the school ( : 53-54). Ms. gave them a of the school and the rooms and answered several questions they had about the , such as what kind of the school offered and how many were in the . explained to the that there was a - coach in the school and that were “constantly working with in different within their classrooms that are adapted to meet the students‟ needs” ( : 55-56). Ms. also told them that at the time there was in the but could not predict how many would be in the for the 2010-2011 school year because many and enter ( : 55). The visitors also asked whether the students with with the other who are and Ms. responded that they did; all of the at students eat at the same time ( : 56, 100). Ms. explained at the hearing that is “ structured” in that the students with sit on one side of the room with the - while the students with on the other of the . noted that since the site is for students, there are “very minimal , if any” ( : 56-57, 101). Ms. explained that there is a “full ” at . The student-toratios are maintained and in addition, the service providers, support and Ms. are also in the , for a total of about for ( : 56-57, 100-101).
Ms. explained how the school determines which classroom is appropriate for a student, noting that sometimes, with input from the ,a originally based on information from the and the is changed after the is ( : 57-58).
Ms. testified that after reviewing the child‟ would have placed the child in class. Ms. has a Master‟s Degree in education and reading and permanent New York State certification in both areas for grades to . On July 20, 2010 Ms. and Ms. prepared a class profile of that class because of the impartial hearing. At that time, there were and in the class, all of whom were classified as having . The range of the was from to years-old; the last to enter the class was a . For the purpose of the profile, Ms. assessed the of the based on their , classroom and and reports ( : 59-61, 87-89, 94-98; : 218-220, 222-223, 249, 251, 255-
256; DOE Ex. 12).6
The in Ms. class was , who had a Master‟s Degree in education. There was an additional one-to-one in the class assigned to a student who had and . Ms. did not know the credentials of that but knew that he had been working as a for “at least a few years” ( : 222-223, 255-
257).[7]
Ms. explained that used a multi approach in teaching, incorporating the use of and input as necessary for a particular child ( : 225-228). also explained how incorporates a minimal amount of (“ ”) and some , and uses the as a guide for the goals. noted that used only if thought it is appropriate for a particular student to meet a particular targeted goal ( : 227-230, 262, 268-269).[8] The needs of the students were addressed with the use of a ; no were available. Ms. was also able to provide or if a student needed such to . Although was not familiar with the use of for input, was aware of the need for that input and stated that if the child had been in class would have consulted with , and and about its use ( : 226, 267-268).
Ms. testified that students had a wide range in their levels of and pragmatic skills ( : 269-272). For example, the in the class spoke in two-word phrases and Ms. considered to be “ .” The at the high end of the range was able to wants and needs and consistently
6 Ms. testified on direct examination that she believed that prior to formulating the class profile on July 20, 2010 she received the child‟s IEP from either the CSE the placement office 86, 88-89). However, when asked by the Impartial Hearing Officer whether she recalled receiving the child‟s IEP on July 20th, Ms. responded that she could not recall (Slater: 104). Ms. has been teaching for ten and a half years. She began as a primarily for preschool students with autism. She then taught a self contained class for grades 3 and 4 at in Queens and subsequently worked for BOCES in Westchester as a reading teacher for special education students in grades 7 through 12. She began working at P.S. 811 @ 149 in February 2010 (Diaz: 220-221).
without a using to ; “mean length ” was “ to ” and he spontaneously commented on things in and in environment. However, he did not describe “states of emotion” which was something he was working on at the time ( : 269-271). Based on the skills as indicated on , would be at “the higher end of things,” “maybe above” the who was at the highest end of the range in July 2010 ( : 271-272).
Ms. testified that and the were a “great team” during the summer of 2010. explained that they collaborated “a lot” and kept a “very positive, ” in the classroom so that the students felt “comfortable and safe” and had their and academic needs met. Ms. noted that “generally” tries to keep a “calm” classroom with a minimum of “ ” or “ raised” ( : 244).
Ms. described the “ ” and reward system that used with class ( : 232-232, 264-265). described the of the , which included a , , a small area for and an area that was used for , and at the end of the day ( : 233-234, 262-263).[9] then explained what took place during a typical day in the classroom ( : 234-241, 244). testified that the day began with instructional , followed by “morning meeting ,” which described ( : 234-236).10 was followed by , which began with the in a group for work on “ .” The class then a together and did an based on the ( : 236-237). Ms. taught reading in both a whole group and two groups of two and students each. The groups were because of the had a of and than ; the of students was on a - to grade level ( : 245).
The next period was with a “cluster .” During the summer of 2010 there were three cluster that worked with the class for movement, art and literacy while Ms. had “prep” period; the two were with the class during that time. Ms. did not know whether the cluster were certified in special education ( : 237, 266-267). After the period with the cluster , Ms. conducted a math lesson. explained the lesson began with the whole group and then broke into small groups of two students, each group working with an . The one-to-one remained with student‟s group of two; those two students were on a to level in math ( : 238-239, 245, 257-258). The groups were determined by the academic skills of the students, the goals on their IEPs, their and their skills ( : 239). The next period was “instructional lunch” followed by a period with another cluster while Ms. had lunch ( : 240). The last activities of the day were “free choice ” and a “ ” with something like and . The included up, away the and having the their and ( : 240-241). Ms. explained how the students then “pack[ed] up” to go ( : 241-242). Each of the students had a communication book in which Ms. communicated with the child s each day ( : 242-243).
Ms. described how designed lessons for the particular subject areas, explaining that the lessons reflected the goals as indicated on the students‟ IEPs ( : 243-244). also explained how and when addresses skills ( : 247-248). And, testified about how addresses who are or ( : 248).
Ms. never met or observed the child but reviewed the goals on the March 4, 2010 . testified that would have been able to address those goals, which were similar to those of other students in class ( : 249, 254). explained how, if the child had attended class, would have tried to ensure that could identify and meet the needs ( : 246, 249-250). also explained why, based on the , believed that the in class in July 2010 would have been academically and socially appropriate ( : 251-253). Ms. stated that believed that the goals in the indicate that would have been on one of the “high levels” in reading and thus, when working in groups the child would have been in the “smaller” group ( : 253, 260-261). However, Ms. explained that if the child was not decoding when entered the class in July 2010, would have started the child in a “lower” reading group and then determined whether to mover up ( : 260-261). Ms. testified that the child would have been in one of the middle to high math groups and would not have worked with the oneto-one or the student he was assigned to ( : 259-260).
Ms. is in Ms. classroom each and knows all of the and the students “ well.” has observed Ms. both “formally and informally.” Ms. ‟s classroom is “very tailored” to meet each student‟s specific need to meet the student‟s goals and the ABLLS. described the classroom as “structured, concise, very clear and supportive and caring” ( : 62). Ms. believed that Ms. ‟s classroom would have been appropriate for the child because the class would have been able to meet all of the needs as indicated on ( : 60-61). Ms. also explained the workshops that are provided by the school once or twice a month ( : 53-64).
Ms. testified that the was supposed to respond to the offer by June 28, 2010. However, when “ ” did not hear from by that date it offered the seat to another child. By the time the visited the school on July 19, 2010, the seat originally offered to the child in the had been taken by another student to whom the was subsequently offered ( : 106, 105). Therefore, students were enrolled in the class on the first day of school in July. Ms. stated that sometime between July 12th and July 20th one of the children was discharged for the rest of the summer ( : 106, 92; : 223, 268, 273-274). The attendance records for Ms. class indicate that one student left the class as of July 22nd and that another student entered as of August 3rd (DOE Ex. 19). Ms. explained that if the child had appeared at school on July 6th the would have contacted the District Office and gotten a for one more student ( : 296-299; DOE Ex. 19). After the summer an additional class was added and if the child entered the school at that time Ms. would have determined which of the two classes was most appropriate for ( : 92-94).
THE S’ CASE
is the . the child from the of when the was old. The child developed “ ” at , although was “not quite” what “expected it to be.” When the child was old was not meeting all of . In particular, Ms. that the was not or or from to the ( : 567-568). In August 2003, when the child was a more than year-old, Ms. placed in “ ” and the child received , , and “ .” The child received some of the at and from February 2005 to August 2005 attended an preschool at the When the child was in the attended a with a . However, just after Thanksgiving 2005 was “expelled” from the nursery school and for the remainder of that school year the child had a with the , , and ( : 568-569). The child was accepted to the Learning Center for the following year. However, before the meeting the school “revoked” the admission and the child had the for another year. The following school year, beginning in September 2007, the child attended and has been there since then ( : 569).
On March 4, 2010, Ms. attended an meeting for the child ( : 570). Ms. did not remember discussing a history, Dr. ‟s findings, a and evaluation, an evaluation or a evaluation, at the meeting ( : 570). did, however, recall a conversation about the classification of , explaining that the classification is discussed at each annual meeting. Ms. testified that the child does not have a diagnosis of . However, the child was classified as having at “ ” meeting. At that time Ms. was advised that the classification was necessary in order to get the child into a “very small class.” At the March 4th meeting Ms. asked about classifications of “Other ” or “ .” However, the CSE felt that the classification should remain as “ ” since “almost all” of the students at had that classification ( : 571). Ms. did not recall whether the CSE asked the about the classification ( : 572).
At the meeting the CSE changed the recommendation for from and in a . Ms. did not request the change but recalled that the change was made because the CSE believed it would be “nice” for the child to have “more interaction in . The only person working with the child that was called to participate at the meeting was the ; the CSE did not call any of the service providers to update the goals ( : 572, 574). Ms. recalled a discussion of the goals and knew that the CSE had the most recent report from ( : 574).
Ms. testified that parts of the were prepared before the meeting and that changes were made to the during the meeting. did not see a draft of the during the course of the CSE meeting and received the in the mail about a “week or so” after the meeting. did not receive a copy of the “ ” of the meeting until Ms. provided the document to “at some point” ( : 573, 575). Ms. did receive a Notice of Recommended Deferred dated March 4, 2010 and signed and returned the document to the CSE; did not receive a response ( : 575-576; DOE Ex. 7). also received a 12Month School Year Consent Form that signed and returned to the CSE ( : 576-577; DOE Ex. 8). On June 24, 2010, Ms. faxed a letter to Mr. at the CSE to tell him that had not yet received a offer, that was placing the child at and that would be seeking for and transportation; did not receive a response ( : 575-576; ‟s Ex. I).
Ms. signed the contract for on April 7, 2010 because did not have a offer from the CSE and had to be sure that the child would have a . explained that if accepted a offered by the CSE before September 7th could “get out” of the contract and would lose only ( : 586). Ms. made two payments to on April 15, 2010 ( : 587; ‟s Ex. M at 3).
As of July 10, 2010 Ms. had not yet received a for the child ( : 575). Ms. did not receive the Final Notice of Recommendation (“ ”) directly from the CSE and first received it in mid-July. At that time called the school and made an appointment to visit on July 19th ( : 577).
Ms. visited the proposed with ,a work at for three years; previously worked as a in an early
.[11] They were told that the child would be to one of for students on the . , the , and another person took them on a and they saw - , both of which were “filled to capacity.” Ms. told that both classes had students registered on July 6th, the first day of school ( : 578; : 541-544, 548-549). 12 No one mentioned that a seat could have been found for the child by a “.” Ms. asked for a class profile but was told that the school did not have one ( : 581).
During the tour Ms. and Ms. observed that the in which and were provided was smaller than a classroom. There were in the providing to students. The had , and . It had a “very small and “ ” . There were no large balls and nothing that Ms. has seen in at . They were told that the school did not have any or a ( : 578-579, 582; : 544-545, 549-550). The school had and for the providers. Ms. and Ms. were told that the large room was for and . was provided in a “ on ” ( : 579-580). The and the were the same . It was very and about at the same time. After the went out into the yard for recess and there were “a lot of ” and “ ” and it was “ ”( : 580; : 546).
The school uses and and has a of . Neither Ms. nor Ms. believed that the would appropriate for the child because the child would not be motivated by the use of material rewards as ( : 580; : 546, 550-551).
On July 22nd , Ms. wrote a letter to advising him that visited the , that it was not appropriate for the child and that would be placing the child at and seeking ; did not receive a response ( : 577-578, 582; ‟s Ex. G).
Ms. called Ms. the first or day of school in the fall, because Ms. had indicated there might be an opening for the child at that time ( : 582-583). was told that there were openings and so visited the school again. At that time, there were classes and children present in each class, although students were enrolled who were not present that day. Ms. asked why was told there were seats available, was told that not all of the appropriate classes were full and that if the attended they would “ some ”( : 583-584). Ms. was “not comfortable” with that circumstance since had previous been advised that the children were placed based upon an assessment of their functioning levels, not based on where there was a “spot.” Everything else at the school was the same as it was on first visit. The person who took around the school was either unwilling or unable to tell anything about the other students in the classes ( : 584).
th,
On September 16 faxed another letter to Mr. telling him about visit to the school, that found the school to be inappropriate, that was continuing the at and that would be seeking ( : 584-585; ‟s Ex. F). did not receive a response to that letter and the CSE did not contact to dispute any of the allegations in the letter ( : 585).
As of the date of testimony Ms. had paid a total of $ and there was one payment remaining ( : 587; ‟s Ex. O).
is an educational associate at CSE ( : 282). duties and responsibilities include making referrals to District getting the district to recommend a school and then sending a letter to the s( : 283). Mr. explained that after a CSE review the team fills out a District Office Referral Form and gives it to him. He then transcribes the referral onto a computer after which he emails the form to city-wide programs. Mr. prints out a copy of the emails and saves it on desk for to a year at which point he places them in a box under desk ( : 283-284, 289; DOE Ex. 10).13 District usually “gets back” to him within a few days or a week or two, depending on
Citations to pages 289- 293refer to Ms. ‟s cross-examination of the witness.
the availability of the particular that is being requested. At that time, he generates a letter to the and mails it. He prints a copy of the letter for filing, a copy for the final notice “drawer” and a copy for himself ( : 285). He puts the letter for the in a window envelope, folding the letter so that the address is visible through the “window” and puts a return address on the envelope ( : 286287). He then brings the letter to a gentleman in the mail room who then puts a stamp on the letter and mails it ( : 291).
Mr. testified that the “rarely” receives envelopes back from the post office and on those occasions it is usually because of the wrong address. When that happens he tries to “look up” the correct address by consulting the . There is no log of returned mail and he does not keep records of letters that are returned for the incorrect address; he has no way of knowing whether a letter was returned for a particular student and re-mailed ( : 287-288). Mr. has never had a letter returned from the post office because the address on the envelope was not visible. However, he has been contacted by s who indicate that they have not yet received a notice even though records indicate that the document was mailed ( : 288). Under those circumstances he checks the address and re-sends the letter; those letters are “generally” do not correspond to the letters that are returned from the post office because of an incorrect address ( : 288-289).
The address on the that was sent to the was put on the by District Mr. printed the letter from the computer, put it in an envelope and brought it to the mailroom ( : 290-292).
is the at the School (“ ”). Ms. has a Master‟s Degree in work and is a licensed . also has a Master‟s Degree in education and certifications as a School and a School District Administrator, all in New York State ( : 307). does not have certification in education ( : 331). Ms. described experience education school from September 1998 to June 2005, when started . The school opened to students in September 2006 ( : 307). Ms. is involved in the , and of and the intake and of in the classroom.14 meets with the and the classroom and is involved with everything relating to the “ to- of the school ( : 308, 316, 333-334). Ms. each about a and between and ( : 315).
Ms. described as school for children with - in relating and communicating. There are approximately 107 students in the school ranging in age from 4 to 21 ( : 308, 311, 338, 340). The students include those with classifications of , and , and ( : 311). The school uses a (“ ”) ( : 308-309; : 356). The have days of prior to the of the school year and there is ongoing as well in that there is every Friday relating to or other s the school provides; some of the is provided by and certified in ( : 310-311, 332; : 356). Ms. has attended yearly conferences as well ( : 356-357, 403-404).
Each is assigned a for support. The provides , , and as needed ( : 312-313). “ within the ” and other things that to the ( : 313-314). holds case conferences every about a different child. The conferences include the , the team that works with the child and the entire , including Ms. ( : 310, 316).
The school a“” of each child at the beginning of the school year to determine the ability to either decode or be a “sight word reader” ( : 342, 382). The of the are and is very for them. The child has taken both the and the ( : 343).
The child began at in September 2007 ( : 317, 337). Ms. was involved in the admission process and participates in meetings about the child. sees the child throughout the school day and at least once a week in classroom. Ms. explained that the child presents with in and . While is , is often rote in in that are familiar to rather than ( : 315-318, 341; : 405).
Neither the head teachers nor the teaching assistants are required to be certified in special education.
The child uses short utterances in that will say something using between one and words rather than giving all the information at one time and information . is to and to visual input. At the same time, the child is “under reactive” to the other senses. For example, has and . The child has with and and has with and ( : 317-318). Although academic skills are not yet at grade or age level, the child has made “ gains” in those areas. In particular, the child is an “incredible ” with a of about and can read simple . However, does not with and does not read with “ ” unless it is ( : 318, 337). The child can add basic numbers “under ” and is able to identify certain . While has some of time, does not understand the concept of taking or an and does whether or a . And, the child has “ and across a ”( : 319).
Ms. described the individualized that the “team” developed for the child that as an “ approach” dealing with needs ( : 319-320). receives 30-minute each of times a week, three times a week, twice a week and with a once a week and with a music once a week ( : 320). explained that music is considered a “ service” by New York State and that the child responds “really well” to music. Ms. explained how music helps with the expressive and fluency in reading, and stated that it has been “quite successful so far” ( : 322-323, 335-336). Explaining why the child does not receive times a week as mandated on the , Ms. explained that uses the as a “guideline” and noted that the works in the classroom as well and that the is to provide the child with input throughout the day in the form of a “ ,” which explained ( : 329; : 347).
The at is 8:1:3 and the classroom has students, on and three assistants ( : 311-312, 316, 321). The is . Ms. is currently enrolled in a Master‟s Degree in education but is not yet certified in education. This is fourth year teaching at . As Ms. is responsible for the of the students in class, including being aware of their goals and needs. also supervises and trains the three that work with . None of the is certified in education; are in a dual Master‟s Degree in education and education and one is enrolled in a Master‟s Degree in work ( : 321-322, 324-325; : 347-352, 403).[15]
There are and in Ms. class, including the child; the was born in and the was born in ( : 352-353, 357). All of the in the class are except for who uses a (“ ”) and , and all of the except for one are ( : 353-355). The students in the classroom are “extremely ,”very and “enjoy with each other” ( : 355, 381). Ms. uses the throughout the out day with , by all and to the needs of the students, and by on the between the and their and ( : 356).
Ms. has known the for years, first as an in the classroom and for the past two years as the ( : 357-358). explained that the child has “a lot” of and practicing and that needs “a lot” of support throughout the day. The child has “some challenges” as well ( : 358). Ms. noted that the child requires a lot of to interact with and , although has shown substantial improvement in this area. The child also has relating and communicating ideas. Ms. described how addresses the and needs within the classroom, including implementing a that for to play with in , which seems to enable to join the group ( : 359361). Ms. testified that the activities does in the class are “so based” that sometimes the needs are met without “ breaks” throughout the day. the equipment that is in the classroom and explained how that equipment helps the child to focus ( : 361-363).
Ms. described how addresses math in the classroom each day based on a guideline of New York State standards and incorporating various curriculums.
For reading, Ms. does not follow any curriculums and uses made materials ( : 364-368, 405-407). also explained that works individually with the child three times a week for 15 to 30 for one on one reading instruction. In addition, “team” may also “pull [the child] out for reading once or twice a week for 10 or 15 . Ms. testified that assesses the reading and math skills by observations; no unit assessments are used ( : 407-408, 451). opined that the reading has “blossomed” this year ( : 363-364). For math, the child is working in a group of students on addition, number lines and money. One of the goals for the child is to have do addition without using ( : 366-368). Ms. would not give grade ranges for the student in either reading or math and would not identify the how the reading and math skills compared to other students in group, explaining that that the skills are “so varied across many different things.” For the same reason, Ms. would not give an overall range of the class‟ functioning in those areas ( : 367368, 406-409). However, when asked generally about specific skills such as identifying coins and measurement, Ms. opined that the particular skills were between a and a first grade level ( : 438- 441).
explained how and activities are integrated into academics in the classroom. Ms. stated that adapts all of lessons to be meaningful for the child and that uses made materials for that purpose. For example, the child loves Disney characters so to increase motivation in math Ms. uses of and as rather than blocks ( : 368-370, 405-406). Ms. then reviewed in detail the daily schedule ( : 370-381, 409-417, 447-448; ‟s Ex. K). explained that skills are worked on throughout the school day, both by talking about the appropriate way to play with another child and giving suggestions ( : 381-382). ). Ms. testified that the child is in the “middle” of the class in academics and on the “lower end” of the students in terms of ability ( : 401). However, the has increased since has been in this class with students above level ( : 401-402).
does not keep data on the students. Rather, Ms. writes notes about observations of the children during the day and write about their with students. They also usually do a , which measures the understanding of receptive and a , which is a word ; both were administered to the child at the end of September or the beginning of October 2010 ( : 382-383). Last year the child was not able to take the Tower at all or get a raw score; this year the child did “very well” ( : 383-384).
Twice a year Ms. writes a section on the Report ( : 384, 417; DOE Ex. 4; ‟s Exs. U, V). Ms. has specific goals for students that drafts in November for the December Report. Those goals are intended for that school year although some of the long term goals may extend beyond that year. updates the December goals for the May Report ( : 386-387). The most recent Report is dated December 2010 ( : 385; ‟s Ex. U). The CSE review for the 2010-2011 school year relied on the Report dated December 2009 ( : 418; ‟s Ex. V). Ms. explained that in the December 2010 Report some of the goals indicate “continued goal,” and explained that it would be appropriate to continue a prior goal if that goal had not yet been reached ( : 419, 428-429). Ms. compared the goals on the December 2009 and December 2010 Reports and explained why some of the goals appeared to be similar while in fact, they actually focused on “two different things” ( : 420-427). also noted that some of the goals in the December 2009 and December 2010 Reports are “relatively” similar ( : 431-433).
Ms. opined that the child has made in all areas during the 20102011 school year. For example, last year the child was only able to read sight words whereas is now reading sentences and full books. has also made “a lot of ” in math and has “blossomed” since has been in a class with “very, very s” ( : 388-389). And, since has improved skills have improved as well in that is more interested in interacting with s than has been in the past ( : 389).
Ms. also opined that the child has made during the 2010-2011 school year so far. For example, the ability to use more consistently over all areas “to request or to comment” has improved. In addition, muscle tone has increased in that is more able to sit upright and use to “ -”( : 323). The academic abilities have increased in that more than did before and is more interested in books. The child is also initiating with s more than did at the beginning of the school year and is aware, and is able to comment on, “ state” of s( : 324).
Ms. participated via telephone in a CSE meeting for the child held on March 4, 2010 ( : 389; DOE Ex. 9). recalled being asked about the classification and re “ ” and making it clear that did not believe it was “place” to “say a classification” for the child, since is a and not a ( : 389-390). Ms. did not recall any discussion about a and did not believe that the child requires a since at the is able to “handle whatever ” they see using the school‟s “approach” ( : 390). Ms. noted that previously the child some tendencies such as “ .” However ,the no longer ( : 390-391). testified that is “not aware of” asking to change the service mandates during the meeting ( : 391).
Ms. recalled that goals for the child as indicated on the December 2009 Report were “read back” to at the meeting; those goals were developed for the 2009-2010 school year. After reviewing the developed for the child at that meeting, Ms. testified that the first annual goal for reading on the , that the child “continue to develop the decoding skills of vocabulary,” is not appropriate for the child because has “so much with ” and is an “extremely strong sight reader” ( : 392; DOE Ex. 9 at 6). Commenting on the short term objective that the child “recognize 80 new sight vocabulary words that are emotionally relevant . . . with accuracy,” Ms. expressed that did not know whether the goal was appropriate because it was not clear “what the 80 is built off of.” stated that wrote the short term objective that the child consistently answer “WH” questions from familiar stories with minimal prompting and noted that the child had achieved that goal during the 2009-2010 school year ( : 393-394). Ms. commented on the other reading goals in the as well, noting that where a goal specified “stories that are read in class” the child met that goal during the 2009-2010 school year with respect to stories or characters that the child was familiar with during that school year ( : 394-395). noted that while some of the other goals in the were still appropriate, child had already met other goals ( : 394-397).
Ms. has never worked in a New York City public school but did work in a class in Michigan ( : 403). opined that a classroom with students, one and one would not be appropriate for the child because that ratio would not be able to provide the child with the support needs throughout the day. noted that the child requires one-to-one input for 50 to 75% of the daily activities, even when is in a group ( : 400-401, 436-437).
Ms. testified that has never observed the child working in a student to ratio of less than . explained that “having more works for the child” and that there are “many times throughout the day” that the child works with an either individually or in a group of two. also noted that the works with the child individually on reading and “some other more structured areas.” Ms. stated that in opinion the child may “not necessarily be able to without getting” as much support as warranted ( : 324-326, 329). In response to a question on cross-examination, Ms. testified that believed continuous support by a in a would not be an appropriate environment for the child. explained that can have only a school degree with no educational background and that the child does not require a “ ” or “ ” but instead requires ( : 327). Ms. distinguished the at from in that the must have a minimum of a Bachelor‟s Degree and experience in the field of education. The also receive at the school level as well as individual by their / ( : 346).
The for the 2010-2011 12- month school-year is $ ( : 338). While the school offered a “prepay” discount for the 2009-2010 school year that discount is no longer in effect ( : 338-339).
has been a and at for three years ( : 640-642). has a Bachelor‟s Degree in and hearing science and a Master‟s Degree in and . has a New York State license in and and is certified by , the “ ”( : 641). In addition to working at , provides as a through and the Department of Education ( : 641-642).
Ms. has been the and provider at since September 2010; in July and August 2010 provided those . Ms. is New York State certified ( : 642-643). Ms. sees the child individually a for , in a once a for and in a with other students a week for . A is present in the , which is a “ ” and takes place in the ( : 643-644, 660, 662).16 The needs include and receptive and articulation. Ms. described how is addressing these and described a , and with the child ( : 644-646, 662-663). While the March 4, 2010 recommends - of and each week, Ms. explained that believed the are “ ” for the needs because is a “ based ” the child gets “a lot of support and carryover with in the classroom” ( : 660, 663).
The and goals and short-term objectives that Ms. developed for the child for the 2010-2011 school year are reflected in the Report of dated December 2010 ( : 646-647; ‟s Ex. U). Ms. noted that the long term goals may be similar to the goals for the 2009-2010 school year. However, the short term objectives were altered either because the child had made in reaching those goals or because Ms. determined that a past goal would not be able to be a priority for the current school year ( : 647-648, 651). Ms. then compared the and goals on the March 4, 2010 , which
Citations to pages 662-669 refer to s cross-examination of the witness.
reflected the goals on the December 2009 Report of , to the goals on the December 2010 Report of and commented on whether the goals “remain[ed] appropriate” for the current school year ( : 648-658, 664-668; DOE Ex. 9). Ms. acknowledged that goals require continuous reassessment while working with a child. also acknowledged that some of the goals were changed only with respect to the amount of times a skill was required to be met or the degree of support necessary to perform a particular skill ( : 667-668).
Ms. testified that wrote the goals for the December 2010 Report of in November 2010. Prior to that November used the goals from the May 2010 Report of as a “framework” for “background information” since was “getting to know” the child by “ ” during that time ( : 658-659, 665). opined that the child has made toward meeting goals since September 2010 ( : 657, 659-660).
Ms. participates in the weekly team meetings and case presentations, and if necessary can meet with the team any morning or afternoon during the week ( : 661).
is the at . has a Master‟s Degree in and a Bachelor‟s Degree in special education and elementary education. Ms. is certified in by the of and has a New York State license in ( : 607). has been working in education for 20 years and has been an for the past 11 years ( : 608). described responsibilities at ( : 608609).
Ms. was the for the 2009-2010 school year and worked with the child during the of 2010 until October 2010 ( : 609, 617).17 During the summer worked with the child for - individually twice a week and in a group once a week. “Typically,” Ms. did one of the individual in the and split the other session so that would work with the child in office twice a week for 15 , focusing on handwriting. However,
Citations to pages 617-622, 628, 635-638 refer to cross-examination of the witness. if the child “needed more input” would take to the for a 30-minute session. Ms. explained that when the child is on a swing in the becomes “much more animated” and “outgoing” and is able to have a “ and ” with another . In addition, Ms. ran group in the classroom times a week for 30 ; the child participated in these at least three times a week. ( : 609-610, 617-618, 623.
Beginning on the first day of school in September 2010 Ms. was interviewing potential candidates for an position at the school. Until , the new began at in October 2010, Ms. saw the child in small group twice a week. There were three to students in each session and either the and an or two , for a total of about and . The child did not become “ ” or “ ” during those because there were to children and so an was able to “ with” the and keep “ .” During that period of time, Ms. also participated in weekly meetings with the classroom team and consulted with the classroom . explained that during that period instructed the on how to provide support to the students and how to implement “ ” ( : 612-614, 618, 620-621, 626-627; : 536). Ms. took the child to the once during that period but otherwise the child did not go to the between the first day of school in September and the time that the new took over. noted that the child did not show any in the time was without the because the classroom teaching was familiar with the child and was implementing strategies throughout the day to provide with the input that needed ( : 619). Those strategies included and ( : 619620). testified that there was equipment in the classroom and the child may have gone to the for ( : 618-619, 622-623, 628-629, 638). Ms. did not know whether the actually took to the in September and October 2010 ( : 636).
Ms. described the during the summer of 2010. opined that from the summer of 2010 to October 2010 the child made toward meeting goals and gave an example of that ( 610-611, 614-615).
Ms. has a Master‟s Degree in and is licensed as an in New York State. This is first year working at and has been the at the school since October 2010. Ms. uses the methodology for which received at ( : 497-499, 501, 531, 536).[18] While an student Ms. worked for two with children who have at a @ , a District school ( : 499-500). Ms. works with the child twice a week for individual 30-minute and twice a week for 30-minute group ( : 501). Most of the individual take place in the , which Ms. described, and explained why believed that access to a is necessary for the child and ( : 506508). The group take place in an empty classroom ( : 502-503). Ms. described the classroom equipment used for the group and explained what does with the child during those ( : 503-506). In addition, there is equipment on every of the school that the child can access as needed ( : 509510). Ms. attends weekly meetings about the students with the classroom and the of the “team.” The and are always available to speak to if necessary ( : 508).
Ms. described the with respect to and described a “sample” session with the child ( : 510- 517). noted that long term goals and short term objectives for the child are in the 2010 Report and that the goals are relevant for , from December 2010 to May 2011 ( : 517, 520; ‟s Ex. U). explained that and somewhat and described the with respect to goals ( : 517-521). Ms. opined that is able to meet the goals on the March 2010 within the - individual and - of students each week, noting that during the there is a lot of one to one support by either Ms. or the . For there are three present and for the group session there are two present ( : 501-502, 521-523, 537).
When asked if it would be appropriate for the child to receive in a room in which both the and have different students at the same time, such as in the recommended by the Department of Education, Ms. opined that the child needs to receive in an with the “ of .” believed that the child would “really get lost” and be “unable to accomplish skills” in a in a room “with many other and many other ” ( : 524-525, 537). testified that that “at times” has seen the child “lost” in a group session but not “often.” noted that all of the students in the group are doing the same thing together and that the assistants are there to provide “one to one” and to “bring in the children” who get “disengaged” from the group at some point ( : 538). explained why the child benefits from receiving in a group ( : 539-540).
Ms. described the diet and how it is met ( : 523524). explained that a is appropriate for the child because the requires “ and input” in addition to “ .” Specifically, noted that the does to “ ” or from arm. Rather, “really benefits” from “much more intense input” such as up a of and then “ on a l arge ” ( : 531-535). reviewed the goals on the March 4, 2010 and indicated which goals were still appropriate ( : 525-530; DOE Ex. 9). Ms. explained that when began working with the child revised some of the goals from the 2009-2010 school year; those revisions are reflected in the December 2010 Report ( : 527-528).
is a New York State licensed with a ; is employed by as the ( : 459-460). At , primarily uses methodology. currently has a in and is in the process of receiving certification; has also been trained at and receives twice a month outside of from a member ( : 461-462, 477-478). In position oversees the mental provided to the students and the . also the and the workers on their cases ( : 463).
met the child in 2007 and has been the child since then. During the current school year works with the child individually once a week for 30 except for the time was on maternity leave, from August 3rd to November 9th
2010. opined that the needs were met during absence in that the child worked with both the art and music , both of whom come under the “ umbrella” at . In addition, a licensed worked with the classroom to oversee the needs of the students ( : 463465, 469). The child still works with the and oversees the and meets with them as part of a “ team” to discuss the students (
19 : 469, 481). explained how and/or the child in meeting ( : 469-470, 481).
explained that the child has maintaining “ and ” of with and s and that has identifying and understanding and the for them. identified the and that has set for the child in various areas and opined that the child is making toward those goals ( : 466-468; Ex. U). For example, testified that the child is able to sustain “ of ” and is creating some new ideas as is communicating ( : 468-469). And, while the child still has with “ based why questions,” is beginning to answer those questions with “increased consistency” ( : 469). explained how uses within the context of the child ( : 477-480).
testified that measures the informally based on observations and has recently been writing down the work that does with the child during a session ( : 480).
Citations to pages 478-484 refer to cross-examination of the witness. is familiar with the goals that appear on the for the 2010-2011 school year and reviewed those goals at the hearing. was not present at the CSE meeting on March 4, 2010 and “assumed” the goals on the developed at that meeting were taken from the Report date December 2009; at that time the December 2009 report was the most recent to date. However, the goals on that report were intended to cover the period from March through the end August 2010. If the CSE had asked in March 2010 whether the goals would be appropriate for the 2010-2011 school year should would have told them was not “certain” but that “most likely some of them would not have been.” The goals for August through December 2010 were “updated” in May 2010 and “carr[ied] over through the summer.” explained why particular short-term objectives were not appropriate for the child, including the fact that the child had already met several of the goals and the fact that there was no specific ration or percentage indicating how many times the child had to do a certain task ( : 470- 473, 482, 488-492). testified that it is inappropriate to gave goals that require for a recommended one-to-one session at a separate location ( : 485; DOE Ex. 9 at 13-14).
with the weekly by email and monthly in person. “participates in meetings regarding the child at least once a month and observes the child in the classroom once or twice a month ( : 474-476). explained why believes that is an appropriate for the child ( : 476-477).
is a and is the of and at ( : 566). He has a in and has been licensed to in for the past 15 or 16 years ( : 556-557). the child when was in in order to help the with the and ( : 557).
referred to dated from September to October 2008 and reviewed the history as indicated in the sum as well as the results of the evaluation. He commented about observations of the child at in April and October 2008 and at ( : 559-560, 562-563; DOE Ex. 1).20 As indicated in the , recommended that the child required a with as much “ -to- very structured support for a child with significant where would get as much as could to help improve the most ”( : 560). He recommended that the child be in a class with “ -to- support with educators, not just with ,” and he opined that a class, even with a , would not be appropriate since, given the “ ,” needed an with “a lot of opportunities for an to be[21] working with -to- ” ( : 560-561). explained that he has observed “many” classes in schools and that he was a in such class during school ( : 565). He noted that he is involved in the cases of “many more children” who attend school than those who attend provide school ( : 565-566).
He explained that the information in the paragraph of the Sum would “normally” be garnered from observing the child at the school and to , and ( : 561-562; DOE Ex. 1). All of the testimony he provided at the hearing is based on 2008 report ( : 566).
FINDINGS OF FACT AND DECISION
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and designed to meet the student's unique needs, provided in conformity with a comprehensive written
.[20] U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §
300.347. A school District offers a FAPE by “providing personalized instruction with sufficient support to permit the child to benefit educationally from that instruction.” Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005, citing Rowley, 458 U. S. at 203.
The legal standard applicable to a request for for educational , such as in this case, is well established. A Board of Education may be required to pay for educational obtained for a child by the s, if: 1) the offered by the Board of Education were inadequate or inappropriate; 2) the selected by the s were appropriate; and 3) equitable considerations support the claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the recommended by its CSE Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9).
To meet its burden, the Board of Education must show that it recommended a that is reasonably calculated to allow the child to receive educational benefits. Rowley, 458 U.S. at 188-189, and that the recommended is the LRE for the child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate begins with an which accurately reflects the results of evaluations to identify the needs, provides for the use of appropriate special education to address the special education needs, and establishes annual goals and short-term instructional objectives which are to the educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.
Under the criteria of the legal standard, the bears the burden of proof with regard to the appropriateness of the that the obtained for the child for the current school year. M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the must show that the educational were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational is one which met the special education needs. Application of a Child with a Disability, Appeal No. 94-29. To qualify for under the IDEA, s need not show that a private furnishes every special service necessary to maximize their potential. They need only demonstrate that the provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-
89. Ultimately, the issue turns on whether a - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. While s are not held as strictly to the standard of in the LRE as school Districts are, the restrictiveness of the al may be considered in determining whether the s are entitled to an award of . Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S. v. Board of Education, 231 F.3d 96 (2d Cir. 2000).
Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether should be awarded.
I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.
I.
At the outset I find that the District failed to provide the child with a FAPE for the 2010-2011 school year. Based on the recitation of the facts as summarized in above, I find that the was dated June 14, 2010, one day prior to the compliance date, and that the was originally mailed to the on that date. In particular, as detailed above, , the special education and for CSE described the process by which an is generated and mailed to the s( : 115-129). , the person responsible for actually generating the , checking the s‟ address, placing the in an envelope and bringing it the mailroom, corroborated Ms. testimony ( : 282-293). This testimony established proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. There was no evidence presented to support a conclusion that that process was not followed on June 14, 2010, when the was allegedly sent to the . Thus, while I credit the testimony of the that did not receive the , I find that the testimony by Ms. and Mr. supports a conclusion that the presumption of mailing applies to that document. Nassau Insurance Co. v. Murray, 46 N.Y.2d 828, 829 (1978); Application of the Department of Education, Appeal No. 08-110.
However, the documentary evidence and the testimony by the show that on Thursday, June 24, 2010 at 4:47 p.m., the faxed a letter to , the CSE Chairperson, stating that did not receive a Offer for the 20102011 school year. The indicated in the letter that “remain[ed] willing to consider any appropriate /school offered by the District.” also indicated that “in the interim” would be sending the child to and seeking ( ‟s Ex. I). The testified that did not receive a response to letter and that did not receive the prior to the first day of school on July 6, 2010. Rather, testified that received the in mid-July, when it was given to by someone other than a CSE representative. The Amended Impartial Hearing Request indicates that the ‟s , Ms. , first learned that an had been issued when received the Department of Education‟s Due Process Response, and that upon request it was provided to office, which in turn gave it to the who “promptly” visited the recommended ( ‟s Ex. E at 2).
There was no evidence or testimony provided at the hearing to explain why another was not mailed to the in response to letter to Mr.
th on June 24 . Ms. testified that in the usual course of business if a wrote a letter to Mr. indicating that had not received a offer, Mr. would give the letter and would make sure that an was generated in a timely fashion. However, stated that did not have either a copy of the letter that the faxed to Mr. on June 24, 2010 or a record of sending a to the family ( : 129). Since the provided proof of the fax sent to Mr. on June 24th, I find that the mailing presumption does not apply to a mailing of the since the usual procedure described by Ms. was ap ly not followed here. In any event, I credit the testimony of the that did not receive an from the CSE prior to the beginning of the 2010-2011 school year and I do not find it credible that two FNRs were actually mailed to the by the CSE but that the received neither of them. Therefore, I find that the Department of Education did not provide the with a recommended in a timely manner.
Moreover, the specifies that if the did not respond by June 28, 2010, the recommended “will be put into effect for the 2010-2011 school year.” It specifies further, inter alia, that if the “requested an Conference, mediation or impartial hearing before this date any recommended changes would not be put into effect” (emphasis added) (DOE Ex. 11). The Impartial Hearing Request is dated June 16, 2010 but it was not filed until June 30, 2010, two days after the June 28, 2010 deadline indicated in the . Therefore, as of June 28, 2010 the recommended should have been “in effect.” Clearly, it was not.
The evidence at the hearing indicated that the class designated for the child was the class taught by at P.S. @ . Both Ms. and , the of the school, testified that students, none of whom were the child, were enrolled in the class on July 6, 2010, the first day of school for the 2010-2011 school year ( :255, 273; : 292, 296-297). The attendance records of Ms. class indicate that there were, in fact, on the class roster that day (DOE Ex. 19; : 255). When asked why the child was not on the class roster, Ms. responded that if the did not accept the offered th on the by June 28 the seat may have been offered to student ( : 90, 92). However, this testimony contradicts the plain on the which, as indicated above, states that if the CSE did not hear from the by June 28, 2010 and no request for an Conference, mediation or impartial hearing was received before that date, the recommended “would be put into effect” (DOE Ex. 11).
Nevertheless, the recommended was not, in fact, put into effect since other students were registered for the class on the first day of school.
The Department of Education states in its Closing Brief that there were not students in Ms. ‟s class on the first day of school because “1 student did not attend school for the first two weeks” (DOE Closing Brief at 18). That assertion is disingenuous. The evidence shows that there were, in fact, students on the class roster the first day of school. One of the enrolled students was absent for the days of school and another was for the days. However, both of those students remained in the class for the duration of the summer. A third student, who began in the class on the first day of school, remained in the class until July 22nd, two weeks after the school year began (DOE Ex. 19). Thus, it is clear that the district failed to have a classroom seat available for the student in place on July 6, 2010, the first day of the 2010-2011 school year, in which to implement the . Indeed, had the student shown up for class the first day, there would have been no space for . Ms. ‟s testimony that if the child had appeared at school on the first day the would have been “able to get a ” or perhaps would have put the child in the other class for the age group ( : 296-297), addresses a hypothetical situation and thus does not satisfy the Department of Education‟s burden of showing that it actually provided the child with a FAPE. Notably, the Department of Education did not present any evidence or testimony as to how long the process would take, when the child would actually be permitted to attend that class or how Ms. would have addressed having an extra student in the class. And, Ms. testified that did not even know whether there was a seat available in the other class on the first day of school ( : 302).
Under the IDEA, if a procedural violation is alleged, an administrative may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the s' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; E.H. v. Bd. of Educ., 2008 U.S. Dist. LEXIS 64974 at *20-21 (N.D.N.Y. Aug. 21, 2008), affd 2009 U.S. App. LEXIS 22757
(2d Cir. N.Y. 2009), cert denied, ___ U.S. ___, 130 S. Ct. 2064 (2010) ; Matrejek v. Brewster Central School. District., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007) aff'd, 2008 U.S. App. LEXIS (2d Cir. N.Y. 2008); Application of a Student With a Disability, Appeal. No. 08-088. I find that under the facts of this case, the district's offer of a special class, where no space was available for the student on the first day of the 20102011 school year, impeded the student's right to a FAPE and caused a deprivation of educational benefits as afforded under the IDEA. See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.4[e][1][i]; Matrejek, 471 F. Supp. 2d at 419 ( "procedural inadequacies that cause substantive harm to the child or – meaning that they individually or cumulatively result in the loss of educational opportunity . . . – constitute a denial of a FAPE").
For the reasons specified above, I find that the Department of Education did not meet its burden of demonstrating that it provided the child with FAPE for the 2010-2011 school year. [22]
II.
With respect to the criterion, I find that the evidence presented by the satisfied burden of demonstrating that the educational at for the 2010-2011 school year was appropriate. In making this determination, I note that in order to qualify for under the IDEA, a need not show that a private furnishes every necessary to maximize their potential. Rather, the need only demonstrate that the provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-
89. The met that burden in this case.
As presented in detail above, the testimony by , the of , Ms. , the , and the service gave detailed picture of the academic and needs and . The witnesses explained how addresses the needs and deficits and how the
2:1 student to ratio at the school benefits the child. Specifically, the testimony showed that the ratio enables an educator and/or a to provide the child with individualized attention, breaks and input throughout the day in order to keep regulated and focused. The evidence showed that the child receives reading instruction suited to level several times throughout the day and individualized reading instruction with Ms. a three times a week for 15 to 30 and with a teaching once or twice a week for 10 to 15 . And, Ms. stated that the child reading skills have “really blossomed” during the current school year ( : 363-364).
The testimony demonstrated that the child receives math instruction suited to level in a group of students who are working on similar goals. Ms. described how made materials are designed to keep the attention focused. For example, explained that the child is “ ” by and so for , uses of and Mouse as rather than . Since the pictures are “ meaningful” to the child will “care about doing” the and “actually learn it” ( : 369).
Testimony by the , and , the , and , the , demonstrated that the child is being provided with that is to needs, even though the are fewer than those recommended on the March 4, 2010 . Ms. testified that during July and August 2010 worked with the child for 30- individually twice a week in both and office, and once a week in a group. During that time, Ms. also ran group in the classroom for 30 in which the child participated at least three times a week ( : 609-610, 617-618, 623. In addition, Ms. explained that while the child did not receive individual from September to October 2010, before Ms. was hired, during that period saw the child in small group twice a week. Moreover, Ms. noted that the child did not show any during those two because the classroom teaching was implementing strategies throughout the day to provide with the input that needed, including and ( : 612-614, 618-621, 626-627). And, Ms. explained that believed the - at are “ ” for the needs because is a “ based ” the child gets “a lot of support and carryover with in the classroom” ( : 660, 663).
Both Ms. and Ms. opined that the child has made in all areas during the 2010-2011 school year. For example, the testimony indicated that while last year the child was only able to , is now and full . The testimony also showed that the child has made “a lot of ” in math and that has improved since has been in a class with “very, very . Due to the improvement in skills the child has become more interested in with s than has been in the and is able to comment on the “ ” of s( : 388-389; : 323-324).
In light of the above findings of fact and the detailed sum of the testimony, I find that the met burden of demonstrating that is providing "educational instruction specially designed to meet the unique needs” of the child supported by such as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89.
III
Addressing the third legal criterion for , I conclude that the equities support the in request for for . There is no evidence or testimony to suggest that the did not cooperate with the Department of Education. The testimony and documents entered into evidence show that the made an effort to find out the recommended for the 2010-2011 school year by faxing a letter to Mr. on June 24, 2010, twelve days prior to the start of the school year. Even though did not receive the until two weeks into the school year, the immediately called the school and went for a tour. Although there was no seat for the child at that time, the visited the site again in the fall after was told that a seat was available beginning in September.
The Department of Education argues in its Closing Brief that the never intended to send the child to public school because signed the contract for on April 7, 2010, prior to receiving the recommendation from the CSE, and that by the time received the recommendation had already paid “over ” (DOE Closing Brief at 29). However, as the explained, and the Enrollment Contract for 2010-2011 specified, if accepted a offered by the Department of Education prior to September 7, 2010 would have been reimbursed by for all but the - ( : 586; Ex. M at 2). Moreover, on April 15, 2010, the date that the signed the contract and paid the full deposit, and on June 15, 2010, the date that made the , the had not yet received a offer from the Department of Education. The can hardly be faulted for wanting to be sure that the child would have a school to attend at the beginning of the school year. Moreover, efforts to obtain the and two visits the recommended demonstrate that cooperated with the Department of Education in every way.
In its Closing Brief the Department of Education also asserts that is a “ for- school” and argues that, because federal regulations “only permit public funding for s‟ unilateral of a student at „a private preschool, elementary school, or secondary school,‟ the ‟s request for should be denied. This argument has been rejected by the United States Supreme Court. In Forest Grove School District v. T.A., 129 S. Ct. 2484, 2493 (2009) the Supreme Court clarified that the statute relied on for this argument -- 20 U.S.C. § 1412(a)(10)(C)(ii) -- constitutes a permissive rather than exclusive source of relief authority and reaffirmed the general principle that the “IDEA authorizes for the cost of -education when a school district fails to provide a FAPE and the -school is appropriate.” Id. at 2496. Relying on Forest Grove the SRO has repeatedly rejected the District‟s argument. See Application [ ], Appeal No. 10-047; Application of a Student with a Disability, Appeal No. 09-085; Application of a Student with a Disability, Appeal No. 09-080.
In sum, I find that the is entitled to of the paid to for the 2010-2011 school year. Any unpaid portion of the is to be to . The of is not to exceed .
ORDER
In light of the above findings of fact, it is hereby ordered that:
a) Within 30 days of receiving a copy of the contract for the -
2010-2011 school year at The School and proof of payment by the , the Department of Education is reimburse the in the amount to the school for the , if payment has not already been made pursuant to the Order of Pendency, and is to pay any amount still outstanding. That amount is not to exceed $ Dated: May 24, 2011
_______________________
Impartial Hearing
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the and/or the New York City Department of Education has a right to appeal the decision to the State Review 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 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
A Impartial Hearing Request, 6/16/10, 4 pp.
B Due Process Response, 7/8/10, 4 pp.
C Hearing 's Decision, 8/10/09, 11 pp.
D Order on Pendency, 2/3/10, 3 pp.
E Amended Impartial Hearing Request, 9/20/10, 5 pp.
F Letter to 9/16/10, 5 pp.
G Letter to 7/22/10, 5 pp.
H Letter to 7/14/10, 3 pp.
I Letter to , 6/24/10, 3 pp.
J Notice of Amended Recommendation, Recommended Deferred ,
3/5/10, 1 p.
K Class Schedule for , Undated, 1 p.
L Affidavit, 9/21/10, 1 p.
M School Enrollment Contract and Payment Schedule, 4/8/10, 4 pp.
N School Attendance Records, 2010-2011, 2 pp.
O Cancelled Checks as Proof of Payment, Miscellaneous Dates, 3 pp.
P DOE Report, , 2009-2010, 2 pp.
Q Education Delivery Report, , 5/28/10, 1 p.
R Section Three School Profile, , 4/10, 3 pp.
S District Site Detail, 10/13/10, 2 pp.
T Letter to 3/4/10, Notice of Recommendation, 3 pp.
U School Report of , December 2010, 15 pp.
V School Report of , May 2010, 15 pp.
DEPARTMENT OF EDUCATION
1 , September to October 2008, 4 pp. 2 , 3/4/09, 18 pp. 3 DOE , 10/13/09, 3 pp. 4 School Report of , 12/09, 15 pp. 5 Notice of meeting, 2/5/10, 1 p. 6 of Meeting, 3/4/10, 1 p. 7 Notice of Recommended Deferred , 3/4/10, 1 p. 8 12-Month School Year Consent Form, 3/4/10, 1 p. 9 , 3/4/10, 17 pp. 10 District Office Referral Form, 3/4/10, 1 p. 11 Final Notice of Recommendation, 6/14/10, 1 p. 12 Class Profile, 7/20/10, 3 p. 13 Due Process Response, 7/8/10, 4 pp 14 Guide for Report, 9/30/10, 11 pp. 15 2009-2010 Report Overview, Undated, 1 p.
16 Quality Review Overview, Undated, 4 pp.
17 Scoring Guidelines 2010-2011, 8/11/10, 1 p.
18 Quality Review Report, School, 2008-2009, 9 pp.
19 Attendance Records for relevant class, July and August 2010, 2 pp.
IMPARTIAL HEARING
1 Notes, Undated, 11 pp.
Footnotes
[2] Ms. noted that the IEP did not have any goals for decoding because she was aware from doing many IEPs for and from that the school does not work on decoding at all ( : 191-194).
[4] Citations to pages 66-104 and 110-112 refer to cross-examination of the witness.
[5] The students at share an entrance with 811 at 149 but the arrival and dismissal times of each school are different (Slater: 110).
[7] “heard through the grapevine” that Ms. is now a special education teacher in the Bronx ( 256-257).
[8] Ms. received training in when she worked for a private agency after graduate school (Diaz: 263-264).
[9] is familiar with from a theory class that she took as part of her Master‟s Degree program, and she uses it at the end of the school day for about 15 or 20 minutes : 246-247, 263). was present for both instructional breakfast and instructional lunch ( : 265-266).
[11] has a Master‟s Degree in social work and has been a social work supervisor at for three years; she previously worked as a social working in an early intervention program 541-542, 547). Citations to pages 547-552 refer to s cross-examination of the witness.
[15] Citations to pages 327-344 refer to Ms. ‟s cross-examination of Citations to pages 403-437 Refer to Ms. ‟s cross-examination of Ms. .
[18] Citations to pages 531-539 refer to cross-examination of the witness. From July to October 2010 the occ supervisor, was running an group with the entire class. The child did not receive her individual sessions until began in October.
[20] Citations to pages 561-566 refer to Ms. cross-examination of the witness.
[21] testified that he visited between seven and eight times on behalf of a child and that least once or twice he recommended a program other than for a particular student. One of those programs was in a public school ( 563-565).
[22] In light of my determination that, for the reasons stated in this Finding of Fact and Decision, the Department of Education failed to provide the child with a FAPE for the 2010-2011 school year I will not address the other arguments raised by the parent with respect to Prong I of the Burlington standard.