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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District: 29
Hearing Requested By: Parents
Dates of Hearing: September 27, 2010
November 8, 2010
November 18, 2010
November 19, 2010
January 21, 2011
January 26, 2011
January 28, 2011
January 31, 2011
February 7, 2011
March 16, 2011
April 12, 2011
May 12, 2011
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2010
Esq. Attorney — Parents
Observer — Parents
Father — Parents
Mother — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
Esq. Observer — DOE
Assistant Principal — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2010
Esq. Attorney — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2010
Esq. Attorney — Parents
Esq. Attorney — Parents
Father — Parents
Mother — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2010
Esq. Attorney — Parents
Esq. Attorney — Parents
Father — Parents
Mother — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
Esq. Attorney — DOE
Special Education Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 21, 2011
Esq. Attorney — Parents
Esq. Attorney — Parents
Father — Parents
Esq. Attorney — DOE
Special Education Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2011
Esq. Attorney — Parents
Father — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
Special Education Teacher — DOE
SL Provider — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2011
Esq. Attorney — Parents
Father — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
SL Provider — DOE
PT Provider — DOE
(via telephone)
OT Provider — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2011
Esq. Attorney — Parents
Esq. Attorney — Parents
Father — Parents
Director of Placement- D. 75 — Parents
(via telephone)
Esq. Attorney — DOE
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2011
Esq. Attorney — Parents
Esq. Attorney — Parents
Father — Parents
Analyst — Parents
SL Therapist — Parents
(via telephone)
Therapist — Parents
(via telephone)
Esq. Attorney — DOE
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2011
Esq. Attorney — Parents
Esq. Attorney — Parents
Father — Parents
Pediatrician — Parents
(via telephone)
Paraprofessional — Parents
(via telephone)
Esq. Attorney — DOE
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2011
Esq. Attorney — Parents
Father — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2011
Esq. Attorney — Parents
Esq. Attorney — Parents
Esq. Attorney — DOE
Esq. Attorney — DOE
By correspondence dated July 1, 2010, the parents of XXX (“the student”) requested an Impartial Hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of the student. (Ex. B ) An amended hearing request was filed by letter dated July 7, 2010. (Ex. A)
I was appointed Impartial Hearing Officer on July 1, 2010. I was available to conduct a hearing within 14 days after the end of resolution. At telephone conferences with the parties conducted on August 10, 2010, the initial hearing was scheduled for September 27, 2010, the first mutually available date for the parties and the hearing officer. (T. 9)
The hearing was held at the Department of Education (“DOE”) Impartial Hearing Office, New York, on: September 27, 2010, November 8, 2010, November 18, 2010, November 19, 2010, January 21, 2011, January 26, 2011, January 28, 2011, January 31, 2011, February 7, 2011, March 16, 2011, April 12, 2011 and May 12, 2011
The parties jointly moved to extend the compliance dates in light of the extensive issues, anticipated testimony, scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. The current compliance date is June 13, 2011.
The record closed on May 26, 2011, upon my receipt of the final transcript.
Background
At the commencement of the 2010-2011 school year the student was about ½ years old and his disability classification was . That classification is not in dispute.
The student‟s first enrollment in a DOE school was on November 25, 2008, after the student„s family moved from . (T. 1112-1113) He was placed in a class at @ (“the school”) after an Interim Service Plan had been developed. CSE meetings were held on March 26, 2009 and May 21, 2009. (T. 11121113, Ex. P) The CSE recommended a program for the 2009-2010 school year and the student continued enrollment in the school during the 2009-2010 school year. (T. 1114-1117) In November 2009, the recommendation was modified, to substitute sessions in a group of two for two of the individual sessions previously recommended. (Ex. 10) The change was proposed by the IEP Team and approved by the parents. (Ex. 10)
In August-November 2009, the parents obtained independent evaluations from the Center (“ Center”). (Exs. K, L, M, N) On January 15, 2010, the parents informed the CSE that they intended to place the student at the Center as soon as they were able and would be requesting “prospective/Connors funding” for various services including direct and intensive : supervision and consultation, : Therapy (“ ”) and Therapy (“ ”) and parent training and . (Ex. J) By letter dated February 9, 2011, the parents sent the Center evaluations to the CSE. (Ex. 12) By letter dated March 2, 2010, the parents, by their attorney, filed a request for an impartial hearing pertaining to the 2009-2010 school year. (Ex. P) That complaint was subsequently withdrawn.
On April 28, 2010, the CSE reconvened. (Exs. 1, C) The AP testified that the meeting was scheduled at that time as a consequence of the parents‟ complaint concerning the program. (T. 101-105, 108) The parents participated by telephone. (Ex.
1) The CSE recommended a special class in a special school (D. 75) (12 month program) with related services - 1x30 individual and 2x30 in a group of 2; -3x30 individual; Therapy (“ ”)-2x30 individual). The April 28, 2010 IEP indicated that there were no changes from the prior IEP [as modified in November 2009 with regard to the mandate] and specified that the projected date of initiation was April 29, 2011, the projected date of review of the IEP was April 28, 2011 and that the duration of services was not to exceed one year. (Ex. 1-2) By letter dated May 3, 2011, a placement in the school (class 5R) was recommended. (Ex. 11) The IEP was sent to the parents on the same date. (Exs. C, 1-2, 11)
By letter dated June 10, 2010, the parents informed the CSE that they were rejecting the April 28, 2010 IEP and intended to place the student at the Center as soon as they were able. (Ex. D) On July 1, 2010, the parents, by their attorney, filed an impartial hearing request. (Ex. B) An amended impartial hearing request was filed by letter dated July 7, 2010. (Ex. A) The amended request specified that it pertained to the 2010-2011 school year. (Ex. A) For the 2010-2011 school year, the parents requested: (a) a minimum of 40 hours per week of : therapy, both at school and at home; (b) 4 hours per week of -level program supervision and coordination; (c) 5 hours per week of : ; (d) 3 hours per week of therapy; (e) 4 hours per week of ; (f) two 30 minute sessions per week of ; (g) integration therapy; (h) monthly team meetings; (i) evaluation and possible integration of ; (j) parent training and ; and (k) transportation to and from school with limited time of no more than an hour each way, all part of a 52 week program, including weekends and holidays. The parents added that in addition they were also seeking a compensatory education award for services the student should have received to address his unique needs which he did not receive during the 2009-2010 school year. (Ex. A)
On November 18, 2010, the DOE moved to dismiss the parents‟ claim for a compensatory education reward arising from the 2009-2010 school year. 1 (T. 324-335, 471-474) On January 21, 2011, the DOE‟s motion was granted for the period from July 1, 2009 through April 28, 2010 but denied for the period April 29, 2010 through June 30,
2010. (Ex. III)
Witnesses Presented
The DOE presented the following witnesses: the Assistant Principal of the school the student has attended for the 2009-2010 and 2010-2011 school year (“ the student‟s current teacher who commenced instruction of this student in September 2010 (“the teacher”); the pathologist who has provided the student with since September 2009 (“the provider”); the therapist who has provided the student with since September 2009 (“the provider”); the therapist who has provided the student with since September 2010 (“the provider”).
The parents presented the following witnesses: , a developmental pediatrician who evaluated the student (“ ”); (“the ”);
(“the ”); ,a specialist who evaluated the student (“ ); the paraprofessional assigned to the student‟s class since September 2010 (“the para”); , Director of Placement, District DOE (“ ”); the student‟s father (“the parent”).
Findings of Fact and Conclusions of Law
A) 2010-2011 School Year
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). Prong 1:
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of The parties submitted memoranda in support of their positions. (Exs. I, II) The DOE had been given a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). See 8 NYCRR 200.5[j][4][ii]. In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The DOE has the burden of proof with regard to whether a FAPE was provided. Appeal No. 08-037
The credible evidence shows the following:
The CSE team included the , as district representative, the student‟s then current special education teacher and and providers, a DOE school psychologist, a general education teacher and the student‟s parents who participated by phone. (Ex. 1-2) The team discussed various documents including a classroom observation (T. 140-141, Ex. 5) a teacher report (T. 141, Ex. 6), an triennial report (T. 142, Ex. 5), a report
(T. 136-138, Ex. 9) and a progress report (T. 142, Ex. 12) The documents were provided to the parents prior to the meeting. (T. 141) The teacher, , and reports were by persons working with the student at that time. (T. 140) The then current teacher, and provider discussed the student‟s present level of performance in their permission to submit a reply but on January 5, 2011, I was informed that it elected not to do so. (Ex. VI)
respective disciplines (T. 34-35) and the report and recommendations were presented to the team and considered. The parents had an opportunity to participate and their opinions were solicited. (T. 1440-1441) Their concerns with regard to and a were addressed by the addition of a goal and provision of in the IEP.
(T. 37, 39, 47, 1435) They were also given the opportunity to comment on other proposed goals and on the program. (T. 1435-1437, 1443) The IEP specified measureable annual goals consistent with the student‟s need and abilities, including short-term objectives. (Exs. 1, C) The goals addressed deficits in attention span, reading comprehension, math, peer interaction, , and , therapy, use of scissors, therapy, trunk control and adaptive education and were based upon the reports reviewed. The parents were asked for their input. (T. 39-47, 915, Exs. 1, C) The student‟s current teacher and each of his current related service providers (two had also participated in the IEP meeting) testified as to the appropriateness of the goals and their expectations with regard to the student meeting them. (T. 424-425, 796-797, 801-812, 951-960,1023-1033) The related service mandates were consistent with the recommendations of the student‟s then current providers and are being met in his current program. His current providers testified that the recommended levels were appropriate. (T. 822-823 1035-1036, 1053)
The CSE recommended month program in a class with related services. The student‟s class commencing September 2010 had students, a special education teacher and a paraprofessional for the class as well as an additional paraprofessional assigned because one of the students required : management assistance. The st students are from - years old and range from through grade level in reading and math and the students are sometimes functionally grouped. (T. 342, 346-347) Three other children are similar socially. (T. 717) A Brigance assessment is administered twice yearly and some of the instructional programs also include assessments. (T. 36,
352) The classroom utilizes the methodology, which is a structured method of teaching and presenting information to the student and of organizing the classroom. (T. 51-52, 347-350) The teacher is appropriately trained in that methodology and the para has also received training.[2] (T. 75-76, 635) New material is introduced to the student by the teacher during : instruction time and students in the class progress, through the use of : areas, workstations, small group areas, a play area and a listening center, to achieve independence. (T. 335, 347-350) The student receives approximately 1 ¾ hours of : daily from the teacher (about 20-25 minutes) and from the para (about 80 minutes) The student does very well in transitioning from activity to activity through the use of the visual schedule and visual cues. (T. 378) The teacher utilizes various programs including the reading program and the movement program to advance instruction. (T. 349-353) The student is re-directed and re-focused when necessary to maintain attention. (T. 377) The student‟s related service providers testified as to their instructional and therapeutic techniques. (T. 806-810, 951-960, 1026-1033) and other communications devices are available and used by the student. (T. 99, 928) The school does not have a gym and the student does not have a “ ” but the student‟s needs are addressed by the and the teacher. (T. 1069-1070)
The teacher and the related service providers communicate concerning the student regularly and techniques observed to be effective in one area have been utilized in others.
(T. 378-379, 787-788, 962, 1036) Communications books are maintained to facilitate communication between the parents and school staff and parent/teacher conferences are held (T. 724-725, 1039) and parent training and opportunities are offered by the school and by the District. (T. 64-65)
The teacher and the various providers each testified as to the progress the student has made. With regard to the IEP goals, the teachers and providers stated that the student has met and/or was expected to achieve goals in their areas. (T. 424-425, 806-810, 951960, 1026-1033). The teacher testified as to progress in socialization and peer interactions, an area of substantial difficulty for this student. (T. 362-368) Progress in those areas was also reported by the and providers. (T.806-810, 963-965)
The parents, however, assert that for numerous reasons the IEP was deficient both procedurally and substantively and that the DOE did not provide a FAPE for the 20102011 school year.
Alleged procedural defects include the following:
No “Parent Member”: The parents assert that the CSE team was improperly constituted because a “parent member” was required but neither present nor waived. (T. 135-136) However, the absence of a parent member, even where required pursuant to applicable regulation, does not require invalidation of the IEP. Appeal No. 10-053. In the instant matter the parents have participated in numerous IEP meetings and are familiar with the process, they were familiar with the proposed program and methodology since the student had been in it during the 2009-2010 school year, they were permitted to ask questions and parental concerns were incorporated in the IEP and the evaluative material considered by the CSE had been provided to the parents in advance of the meeting. Moreover, the parents, by their counsel, had, less than two months previously, filed an impartial hearing request concerning the 2009-2010 school year which delineated in detail various relevant issues in connection with the IEP process applicable to the instant meeting and therefore provided further guidance to the parents. (Ex. P) In the foregoing circumstances, I find that a procedural violation with regard to the absence of a “parent member” did not result in a denial of a FAPE. See, Appeal No. 10-053, Appeal No. 09112, 8 NYCRR 200.5[j][4][ii]
No “meaningful participation”: It is undisputed that at the meeting the CSE did not specifically discuss the evaluations prepared by staff of the Center (collectively “the evaluations”) which had been provided to the CSE prior to the meeting. (T. 81-82) The parent stated that it was his understanding that the reports were there but the CSE did not want to talk about them. (T. 1442) However, the parents‟ programmatic concerns and complaints were known to the CSE at the time of CSE meeting and were discussed at the meeting. (T. 107) Indeed, the prior impartial hearing request had requested a program incorporating the evaluations‟ recommendations, the CSE meeting was scheduled as a consequence of that request and the impartial hearing request official, I note that I found the teacher‟s cadence entirely appropriate in the circumstances here in which she was before the CSE at the meeting and items from it, including the 40 hours of : ,
, parent training and were discussed as was methodology and the : instruction in the class. (T. 102, 104-110, 112-114, 118) Further, although disputed by CSE members, the parent claims that he repeatedly told the CSE of his concerns that the school‟s program provided insufficient one to one and that the evaluations recommended much more as well about his concerns about goals and .(T. 1403, 1435, 1443, 1465) The DOE evaluative documents considered at the meeting included up-to-date reports and observations as to how the student actually functioned in the classroom and while receiving related services. The student‟s then current teacher and and providers as well as the person who conducted the observation were present and discussed their reports and were available for questions. In the foregoing circumstances, I conclude that the parents had a meaningful opportunity to participate in the development of the IEP.
No FBA and BIP: It is undisputed that at the time of the IEP meeting the student had difficulties focusing, was easily distractible, required frequent prompts, did not like loud noises and engaged in self stimulatory . (Ex. 1) The testified that the CSE team considered these issues and the progress that he had made and concurred in rejecting the need for an FBA. (T. 123) Team members included his then current providers as well as the teacher and the school t who conducted the observation. (Ex. 1) They had familiarity with the student, most over an extended period. They concluded that he was easily redirected and brought back to task and that therefore a specific plan was not necessary (T. 38-39, 124) Although the were not extinguished by the end of the 2009-2010 school year, they had decreased. (T. 124, Ex.
1) The stated that the student was able to participate and his were not interfering with his ability to function in the classroom. The evidence shows that it was known that the student required a lot of prompting across all areas but that he could be effectively prompted in : , small and large groups and with a variety of prompts (visual, verbal and others, depending on the task) (T. 171) Further, the IEP specified strategies: was questioned over a three day period in great detail and was, I conclude, attempting to answer accurately. that the student needed repeated, simplified verbal in a gentle voice and positive reinforcement. (Ex. 1-3) In the foregoing circumstances, I conclude that an FBA was not required and the fact that it was not done does not invalidate the IEP. See, J.A. v. East Ramapo Cent. Sch. Dist. 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009)
With regard to that finding, I also note that the testimony concerning the 20102011 school year supports my conclusion. The teacher credibly testified concerning the techniques that she used in the classroom and the progress the student has made. (T. 361, 369-370, 376-378, 388-389, 397, 399-400, 401-403, 517, 560) She testified that she does not believe that a BIP was necessary (T. 392) and that she selected the student as appropriate for the system use because his did not interfere with instruction. (T. 755) The provider also testified that the student‟s did not interfere with instruction and she detailed the lower levels of “ ” now observed during her sessions. (T. 932-933, 935, 936) She stated that an assessment of was not necessary for the student to benefit educationally. (T. 928)
Placement process: To the extent that the parents are making claims based upon an alleged lack of involvement in the placement process, I find those claims lack merit in the instant matter where there are no claims or evidence that the DOE was untimely in developing the IEP or proposing a placement and where the DOE specified contact information to enable discussion of the placement and there is no evidence that the parents attempted to utilize that. (Ex. E) See, R.E. and M.E. v. New York City Department of Education, 10 Civ. 3176 (E.D.N.Y.) March 15. 2011.
With regard to other procedural claims asserted in the impartial hearing request, I conclude they are de minimus or abandoned.
I conclude that procedural errors in this matter, individually or in the aggregate, have not impeded the student‟s right to a FAPE, significantly impeded the parent‟s opportunity to participate in the decision making process, or caused a deprivation of educational benefits. 8 NYCRR 200.5[j][4][ii] Accordingly, the IEP is not defective due to procedural error.
The parents also assert that the IEP substantively defective and the placement is not appropriate and that the DOE‟s program is not appropriate for the student‟s needs and does not comply with regulatory requirements.
With regard to parent training and , it is undisputed that the IEP failed to specify that service. Parent training and are required to be placed on the IEP as a related service. See, R.K. ex rel R.K. v. New York City Department of Education, 20 WL 1131522, No. 09-CV-4478 (KAM)(RLM) March 28, 2011 (E.D.N.Y.)(“R.K. v. NYC DOE”).; see also, Appeal No. 05-031. Although the and the provider testified concerning certain training activities and parent-teacher meetings held by the school and District , they acknowledged that other than the notices of those meetings, no efforts to offer training to the parents were made. Moreover, the fact that parent training was in fact available does not redeem an IEP‟s failure to include it. See, R.K. v. NYC DOE. Further, with regard to the training provided in this matter: there was no indication that the training provided would have been appropriately individualized; the parent credibly testified as to the parents‟ inability to attend the events that were scheduled, in part as a consequence of the distance of the school from the parents‟ home and the fact that they were given during the day. (T. 1398, 1445); the acknowledged that the parents raised that issue at the CSE meeting and that no additional steps were taken to provide training to them. (T. 170) The credible testimony of the DOE witnesses that the parents neither attended any training or parent-teacher conferences nor voice concerns or ask for assistance or training does not relieve the DOE of the duty to make it reasonably available. In the instant matter, the parent credibly testified concerning the parents‟ inability to appropriately address personal care issues including and as well as to reinforce gains made at school and otherwise communicate with the student and encourage socialization, (T. 1408, 1410-1411, 1430) Moreover, the and the stated that at-home activities with the student would have been helpful. These issues could have been addressed by appropriate training. I conclude that the extended failure to provide that training has likely exacerbated the parents‟ difficulties. The lack of training, however, does not warrant invalidation of the IEP in the circumstances here. It can be appropriately addressed through the provision of at-home services as set forth below. See T.Y. v. New York City Department of Education, 584 F.3d 412, 417 (2nd Cir. 2009) (“T.Y.”)
The parents assert that the program offered by the DOE is not adequate to meet the student‟s needs and that the student requires an intensive : program and substantial additional services to make appropriate gains. To rebut the DOE‟s claims of progress in DOE‟s program, the parents point to the testimony of is a at the doctoral level and a “strong proponent of ” who observed the student for the first and only time during the course of the impartial hearing (T. 1142, 1169,
1184) She had not prepared a written report (T. 1185) but testified, based solely upon her observation and various reports that she reviewed, that the student had made “absolutely” since August 2009 and perhaps even earlier in and various other areas and that his instructional control was so poor that he could not be instructed and was not available to learn. (T. 1149-1150, 1166) She also testified that the student appeared to have regressed in certain areas in that period. (T. 1151) Although acknowledged that the was a “fine tool”, she testified that there were “gray” areas regarding interpretation and that this student required a finer assessment tool.
(T. 1159, 1185-1188) With regard to the appropriateness of , she stated she could not imagine the student in a group. (T. 1172) However, she observed the student for about 1 ¾ hours in February 2011 with the student on the computer for much of the time. (T. 1187) The observation occurred at about 5 pm after a full school day and a trip home of at least 1 ½ hours. (T. 1184-1185) In these circumstances the reliability of the student‟s responses to a stranger as a measure of his performance in school is questionable. Although she raised questions concerning the appropriateness of the Brigance, there were no contradictory assessment results proffered. Further, his teachers and providers concluded, based upon their extended experience with this student, that his did not impede instruction and were easily addressed. Their conclusions that he had progressed in various areas were based not only upon assessment results but also upon their observations as they worked with him. testified concerning her evaluation in August 2009. She stated that the student was a visual learner (T. 1334) and that “ certainly is a visual methodology for children.” (T. 1142) The student, however, was not under “instructional control” in that he was not making eye contact, had very poor attention and was wanting to play with certain toys in a certain way. (T. 1318, 1320) Accordingly, she testified, there was no way for him to learn and he was not prepared to learn, even in a one-on-one situation, and therefore “can‟t learn in a classroom.” (T. 1318, 1320) Further, lacks the intensity and the systematic approach that methodology provided and which she believed that the student required. (T. 1342) However, the CSE team, made up of his then current teacher and providers, concluded based upon their experience with the student that he had progressed in a program and that his were easily redirected and did not interfere with learning. Further, instructional and related service staff who have been working with him have persuasively testified that the student is able to learn in a classroom, had met or was expected to meet goals and had made appropriate educational gains. Although in the intensity described by might enable the student to maximize his potential, that is not the standard the DOE is required to meet.
The parents also assert that the related services provided are insufficient. The testified that in her testing in November 2009 the student‟s really interfered and he needed therapy for instructional control. (T. 1201, 1207) She opined that the student‟s deficits warranted intensive (T. 1203) and questioned the appropriateness of the some of the goals and objectives, stating that they seemed high in terms of the student‟s pragmatic and social . (T. 1204) The stated that the student needs a one to one structure with a minimal distractions and stated that a cafeteria setting for the delivery of services was not appropriate because the student was not ready to be working on generalizing. (T. 1210) The student would, she said “surely” if he did not receive the level she recommended and the DOE mandate was insufficient to attain and generalize new skills. (T. 1217) The provider persuasively testified, however, that the student had made progress in the group of two she had recommended in November 2009 to enhance generalization. (T. 793, 803. 806, 815-817) Further, the student is substantially progressing in achieving the IEP goals (T. 787-806) Moreover, she testified with regard to the program that it provides generalization opportunities and enrichment throughout the day (T. 818, 822)
The testified that the student was very delayed and had maladaptive that made it difficult to get him to attend. (T. 1231-1232) She opined that the IEP goals were too rudimentary and not appropriate for a child of his age and functional level and too few in number. (T. 1237, 1241) She questioned the student‟s ability to meet those goals designated with the mandate specified and opined that meaningful classroom gains could not be made. (T. 1241) However, she has not observed the student in the classroom nor provided services to him. (T. 1254) The provider stated the student was making progress, would achieve one of the goals and might achieve the other. (T. 1027-1032. Further, the teacher is working on strengthening and coordination in the classroom. (T. 1036)
The evidence submitted by the DOE and discussed above is principally limited to the program at the school. There was virtually no evidence presented concerning the student‟s program during the Summer 2010. It is undisputed that the student was in a school located across the street. (T. 497) The student‟s and providers were not known to his current providers. (T. 800, 970) There is no evidence that the student‟s related service mandates were provided in their entirety. The teacher communicated with the student‟s prior teacher in the school but had no knowledge as to the identity of the staff at the summer school and had not communicated with them. (T. 497, 506) No information was provided with regard to, among other things, the number and functional and age ranges of the students, teaching and methodologies and instructional programs, the amount of : instruction or the facilities in the school. The parent testified that the teacher was changed during the term but the parents were not informed of that by the school but only subsequently discovered it. (Ex. PP) The parents also claim that the student was by another student and had various other minor in that period. (Ex. PP) The parents‟ claims have not been rebutted or explained. IEP goals updates, were submitted for that period and show gains (Ex. C) and a communications book was maintained. (Ex. PP) Moreover, as discussed above, the evidence shows that the student made progress during the 2010-2011 school year. When the DOE has provided a summer placement in another location with a different staff and students, it is required to demonstrate that placement was appropriate and it did not.
However, I conclude that the summer school failing does not render the IEP substantively deficient where I find that the program was appropriate and reasonably calculated to result in meaningful educational gains and the placement for the period from September 2010 onward was similarly appropriate. See, T.Y. Accordingly, I find that the DOE has established that it provided a FAPE for the 2010-2011 school year.
With regard to any parents‟ claims based upon the student‟s trip to and from school, I note that the impartial hearing request did not raise that issue. An impartial hearing officer has no authority to consider issues not raised in an impartial hearing request unless the complaint was amended prior to the hearing or the other party agrees to amendment. Appeal No. 07-072. However, in the instant matter, although there was no specific agreement to amend, there was no objection by the DOE to the testimony of various DOE witnesses and the parent concerning the length of the trip. See, Appeal No. 08-037. Accordingly, I note that the physician‟s note concerning the length and other conditions of the trip can reasonably be read to be limited in scope, relating to a specific health situation at that time. (Ex. NN) The documentation from the DOE‟s Office of Pupil Transportation (“OPT‟) in July 2010 indicates a trip in the morning of 1 ½ hours (Ex. OO) and the testimony of the parent with regard to the current length of the morning trip is approximately the same. (T. 1404) The AP acknowledged scheduling difficulties at the commencement of the school year with regard to arrival time, indicating that the actual trip may have exceeded the scheduled time, but there is no indication that was is an ongoing problem and I conclude that that was the only busing issue that was reported to her. (T. 129-131, 1462-1463) The parent‟s claim that he frequently complained of the length of the scheduled trip to school and OPT officials is not supported by documentary evidence and not persuasive. (T. 1415-1418) Further, although the teacher agreed that a trip of 1 ½ hours is very long for a child with interfering (T. 632), there was no evidence indicating that the student‟s performance or when he arrived was adversely affected by the trip itself. The parent testified that the afternoon trip routinely takes 2 ½ hours. (T. 1405, 1416) However, persuasive evidence that that is the case or that was reported to any DOE staff has not been submitted. It is also the case that although the parent asserted that he raised the issue of the student‟s trip time at the CSE meeting there is no evidence supporting that claim. (T. 1404) With regard to that omission, I note that neither the parents‟ subsequent June 10, 2010 letter to the CSE (Ex.
D) nor the extensive impartial hearing request asserts that as a problem (Ex. AA). In the foregoing circumstances, I find that the claimed excessive length of the trip, although of concern, is not a basis for a finding that the placement was not appropriate. Appropriate alternative arrangements are available to remedy an excessively long bus trip.
In view of the foregoing findings, Prongs 2 and 3 of the Burlington/Carter analysis will not be addressed.
B. Compensatory Service Claim- 2009-2010 School Year (April 29-June 30, 2010)
The parents assert a claim for compensatory services for the approximately two month portion of the 2009-2010 school year that the April 28, 2010 IEP was in effect. As discussed above, I have concluded that that IEP was neither procedurally nor substantively defective. However, the parents assert that the appropriateness of the student‟s placement for that portion of the 2009-2010 school year was not established by the DOE and that therefore they are entitled to compensatory services. They claim entitlement to the services specified in their impartial hearing request as the program the student should have received during that period.
The evidence shows that the class in that period used the methodology discussed above (T. 499), that related services were provided as specified in the IEP, that all the IEP‟s goals were addressed by the teacher and providers and that progress in that period was made (T. 800, Ex. C ) and that the teachers and providers communicated routinely concerning the student. The evidence also included testimony concerning the school‟s facilities and equipment. While there was no testimony concerning the students in the class or the specific methodologies and techniques used by that teacher, I conclude that the evidence is sufficient to establish that the DOE provided a FAPE in that period.
However, even were I to conclude otherwise, the parents have not established an entitlement to the compensatory services sought. Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). While compensatory education is a remedy that is available to students who are no longer eligible for instruction, additional services have been awarded to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could not be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047; see also Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]). In general, the award of additional educational services for a student who is still eligible for instruction requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047).
In the instant matter, I conclude that the alleged deprivation of services for two months was not gross in the circumstances here or for a substantial period of time. Further, the relief requested, essentially one to one based instruction is not tailored to meet the circumstances of this case in which the student was and is in a school using TEACCH methodology.
ORDER
1. With regard to the student‟s transportation, the CSE shall reconvene immediately and shall review the student‟s trip time, to and from school, and to place on the IEP such transportation requirements regarding time and conditions that are appropriate in view of his needs and deficits.
2. With regard to Summer 2010, the DOE has failed to establish that the student received an appropriate program during that period. The student was, however, in school in that period and, further, at least some of the mandated related services were provided. The CSE shall reconvene to issue authorizations or otherwise provide for related services not provided to the student for reasons other than his absence and to consider what additional services are appropriate and consistent with the student‟s current program to make up for a six week lapse. Those services shall include the equivalent of 1 ¾ hours per day of : instruction.
3. The parents are entitled to receive at-home parent training for a period of 52 weeks. The CSE shall immediately issue authorizations for a qualified parent trainer to provide five hours per week of at-home training, the length of each visit to be determined jointly by the parent and the parent trainer. If the CSE cannot provide a qualified trainer within 30 days, the CSE will issue authorizations to enable the parents to obtain that service at a rate not to exceed per hour. Documentation with regard to the parent trainer‟s qualifications must be submitted to the CSE. The CSE shall make appropriate arrangements to ensure that the parent trainer is informed at least monthly with regard to the student‟s program and progress in his school program to enable coordination. The parent trainer will submit quarterly progress reports to the CSE and to the parents.
4. The CSE shall immediately conduct an integration evaluation, or issue authorizations for a private evaluation to be obtained by the parents and shall reconvene to review the results and the student‟s progress and determine whether additional or related therapy is appropriate in view of this student‟s deficits. The CSE shall issue authorizations for after school service if it concludes that the therapy can not be provided in the school or that the addition of in-school therapy would unduly interfere with the student‟s program.
Dated: June 15, 2011
_______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
JS:dl
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTS ENTERED INTO THE RECORD ON SEPTEMBER 27, 2010
PARENT
A Amended Demand for Due Process dated 7/7/10, 7 pages B Demand for Due Process dated 7/1/10, 8 pages C IEP dated 4/28/10, with progress on goals at 8/2010, 24 pages D Letter from Parent to District, dated 6/10/2010, 2 pages E Final Notice of Recommendation dated 5/3/10, 2 pages F Therapy School Evaluation by dated 4/12/10, 9 pages G Classroom Observations by dated 4/7/10 and 3/26/10, 5 pages H Therapy Triennial Report by dated 3/25/10, 2 pages I and Report- dated 3/24/10, 3 pgs J Letter from Parent to District dated 1/15/10, 2 pages K Comprehensive and Observation dated 11/5/09, 6 pages L Evaluation dated 12/29/09, 9 pages M Therapy Evaluation dated 10/28/09, 16 pages N Neurodevelopment Evaluation dated 8/5/09 and 8/20/09, 13 pages O Jose P. Decision dated 7/28/88, 69 pages P Due Process dated 3/2/10, 7 pgs.
DEPARTMENT OF EDUCATION
1 2010-2011 IEP dated 4/28/10 with goals progress at 6/2010, 17 pages 2 2010 Summer Update on Goals, 7 pages 3 Request for Impartial Hearing dated 7/1/10, 6 pages 4 Amended Request for Impartial Hearing dated 7/7/10, 8 pages 5 Classroom Observation dated 4/27/10, 3 pages 6 Teacher Report Undated, 3 pages 7 Therapy Triennial Report dated 3/25/10, 2 pages 8 School Function Evaluation Tracking Form dated 4/10/10, 9 pages 9 Therapy Report dated 3/1/10, 1 page
10 Waiver to Amend IEP dated 11/2/09, 1 page 11 Notice of Program Recommendation dated 5/3/10, 1 page 12 / Progress Report dated 3/25/10, 3 pages 13 DOE Due Process Response dated 9/22/10, 5 pages
DOCUMENTS ENTERED INTO THE RECORD ON NOVEMBER 18, 2010
PARENT
Q Subpoenas, Undated, 7 pages, 11/9/10 R DOE District 75 Organizational Directory, 2010-2011, 3 pages, 10/5/10 S DOE Paraprofessional Qualification Requirement, 2010-2011, 2 pages T Letter from P. 256Q to parent, dated 10/29/10, 1 page U Curriculum Vitae, 12 pages V Subpoenaed documents, 2010-2011, 131 pages W Letter from parent to District, dated 2/9/10, 1 page
DEPARTMENT OF EDUCATION
None
DOCUMENTS ENTERED INTO THE RECORD ON JANUARY 21, 2011
PARENT
X DOE Book Part B, 256Q at 831, 2010-2011, 3 pages Y DOE AnnualGoals and Short-term Obj. showing status through 11/10, 6 pgs. Z Tax Return, 2009, 1 page AA Photographs of School, dated 5-10, 4 pages BB IEP, dated 5-21-09, 18 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTS ENTERED INTO THE RECORD ON JANUARY 26, 2011
PARENT
CC Various class documents from Ms. , 2010/2011 School Year, 50 pages DD and Evaluation, , 7/27/09, 8 pages EE Therapy School Function Evaluation, , 2/5/09, 2 pages FF update, 1/29/09, 5 pages GG Subpoena, Ms. , 12/28/10, 3 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTS ENTERED INTO THE RECORD ON JANUARY 28, 2011
PARENT
KK / Documents Various Dates, 22 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTS ENTERED INTO THE RECORD ON MARCH 16, 2011
PARENT
NN Physician Letter, re: Transportation, by , 7/1/10, 1 pg. OO Office of Pupil Transportation Schedule, 6/28/10 QQ Subpoena, , 2/7/11 RR School-Based Therapy Progress Report, 4/1/08, 19 pgs.
DEPARTMENT OF EDUCATION
None
DOCUMENTS ENTERED INTO THE RECORD ON APRIL 12, 2011
PARENT
NN Physician letter re: Transportation, by , 7/1/10, 1 pg. OO Office of Pupil Transportation Schedule, 6/28/10, 1 pg. PP Notebook Parent/Teacher Communications, Undated, 16 pgs.
DEPARTMENT OF EDUCATION
None
DOCUMENTS ENTERED INTO THE RECORD BY THE IMPARTIAL
HEARING OFFICER
I Memorandum of DOE in support of its Motion to Dismiss II Memorandum of Parents in opposition to DOE Motion to Dismiss III Hearing Officer Determination re Motion to Dismiss, 1/21/11, 2 pgs. IV Parents Closing Memorandum V DOE Closing Memorandum VI E-mail re DOE Reply re Motion to Dismiss, 1/5/2011, 1 pg.
Footnotes
[2] In their post hearing brief, the parents assert that the teacher‟s “cadence while testifying was unduly slow.” (Ex. IV-12) Since the merits of that claim cannot be independently determined by a reviewing