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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: August 17, 2011
October 17, 2011
October 27, 2011
November 4, 2011
November 22, 2011
December 2, 2011 Actual Record Close Date: December 30, 2011 Hearing Officer: Rona Feinberg, Esq.
2ND CORRECTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2011
Attorney — Student
Father — Student
Attorney — DOE
Special Education Teacher-Assigned (via telephone) — DOE
Special Education Teacher- (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4,
2011
Attorney — Student
Father — Student
Ph.D, Psychologist (via telephone) — Student
Special Education Teacher- (via telephone) — Student
Board Certified Behavior Analyst- (via telephone) — Student
Pathologist- — Student
(via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22,
2011
Father — Student
Ph.D., Director of Placement — Student
Attorney — DOE
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2011
Attorney — Student
Father — Student
Assistant Principal- (via telephone) — Student
Attorney — DOE
INTRODUCTION
On August 17, 2011, October 17, 2011, October 27, 2011, November 4, 2011, November 22, 2011 and December 2, 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 program of a school-aged child, (“the child”). The hearing commenced at 11:00 a.m., 9:30 a.m., 9:50 a.m., 9:40 a.m., 9:30 a.m., and 9:40 a.m., respectively. The hearing was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, 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 on his IEP as having “ ” is years four months old and attends the (“ ”) for the 2011-2012 school year. In a letter dated June 30, 2011, the child’s parents, by their attorneys, ., filed a due process request for an impartial hearing. In their complaint the parents maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 20112012 school year and they requested reimbursement for the child’s tuition at as well as reimbursement for transportation. They also requested pendency based on a September 2, 2008 Decision and Order issued by an impartial hearing officer. An Order of Pendency was issued on or about August 17, 2011.
The impartial hearing request was filed on June 30, 2011 and I was assigned as the impartial hearing officer on July 1, 2011. The original compliance date was September 13, 2011. On August 4, 2011 the parents requested an extension of the compliance date for the availability of witnesses. The District did not object and the compliance date was extended to October 13, 2011. A pendency and subpoena hearing was held on August 17, 2011. On September 22, 2011 the parents requested an extension of the compliance date for the availability of witnesses. The District did not object and the compliance date was extended to November 12, 2011. The hearing was held on October 17, 2011. On that date both parties requested an extension of the compliance date due to extensive testimony and issues, the request was granted and the compliance date was extended to December 12, 2011. The second, third and fourth days of the hearing were held on October, 27, 2011, November 4, 2011 and November 22, 2011. The final day of the hearing was on December 2, 2011. At the close of the case the parents requested an extension of the compliance date to allow for the receipt of the transcript and time to file a post-hearing brief prior to the issuance of the Decision and Order. The request was granted and the compliance date was extended to January 11, 2011.
All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regul0ations.
THE PARENTS’ POSITION
, Esq., and , Esq., of , represented the parents at the hearing. They alleged that for various reasons the District did not provide the child with a FAPE for the 20112012 school year, that is an appropriate placement for the child and that the equities of the case support the parents.
THE DEPARTMENT OF EDUCATION’S POSITION
, Esq., represented the Department of Education at the hearing. She asserted that the Department of Education provided the child with a FAPE for 2011-2012 school year, that is not an appropriate placement for the child and that the equities of the case support the Department of Education.
THE EVIDENCE AT THE HEARING
THE DEPARTMENT OF EDUCATION’S CASE
is a licensed special education teacher and has worked for the Department of Education for 21 years; she is currently a preschool administrator. Prior to September 2011, she was a special education teacher assigned to the CSE. In that capacity she visited private schools, observed students there and consulted with the students’ teachers. She also participated in the annual reviews for students to generate an IEP and recommend a program for the coming school years ( : 224-226).
On May 17, 2011, Ms. participated with other members of team in the child’s annual review for the 2011-2012 school year which took place at . Ms. was the special education teacher on the team which included the child’s parents, a parent member, the child’s classroom head teacher and teacher’s assistant, his , his therapist, a social worker, a school psychologist and a district representative the meeting lasted a minimum of two hours ( : 226-228; DOE Ex. 2 at 2). Prior to the meeting provided an educational progress report and update, an report, a progress report and a Behavior Reduction Plan; the team did not dispute any of the information in those reports ( : 230-231, 262; DOE Exs. 11, 12, 13, 14). 1 In addition, the team had the child’s prior IEP and the Department of Education classroom observation by , a school psychologist ( : 231; DOE Ex. 15).
At the review, Ms. was responsible for the “educational aspects” of the IEP, specifically how the child was doing in reading, written expression and math skills, whether his “ and whether he made progress from the prior school year. Based on the child’s strengths and weaknesses she participated in developing the IEP goals ( : 228229). During the meeting all of the participants were given copies of the documents and Ms. took notes on her copy of the child’s prior IEP ( : 232; DOE Ex. 16). The child’s parents, teachers and related service providers all participated in meeting ( : 256).
The child’s classification remained as “ ,” and there was no disagreement with that classification ( : 232-233). After everyone signed page 2 of the IEP the team reviewed the child’s reading, decoding, reading comprehension, and math, discussing separately “numbers” and problem solving. The discussion about written expression focused on whether the child can actually formulate the letters and whether he can express his thoughts in writing ( 233). The team determined that the child had made progress in decoding and “agreed” that his decoding skills were on approximately a third grade level. However, his reading comprehension was estimated to be at approximately a mid first grade level ( : 234, 262-263). For math the team considered everyone’s “input” and determined that the child’s math skills were on a level and that he was “moving towards learning” such as how to use money ( : 234-235, 242-243). After
Citations to pages 262-312 and 317-321 refer to Ms. ’s cross examination of Ms. discussing the child’s written expression with his classroom teacher and the occupational therapist, it was determined that his written expression was also at approximately a first grade level. Specifically, Ms. testified that the child can “maybe write two or three sentences with two or three words in each sentence also ( 235-236).
The team also determined that the child’s has improved in conjunction with his improved ability to identify words and associate meaning with them ( 236-237, 262263). The goals on the IEP were generated in conjunction with the child’s classroom teacher and the people who work with him at . In particular, during a discussion with the participants who had generated the goals for the prior year - - the child’s teacher, speech and language therapist and occupational therapist - - Ms. noted on her copy of the prior IEP whether the goals had to be continued or modified or whether they had been met ( : 238-239, 306-307). Based on the reports and the input of the child’s teachers and providers, the IEP indicates the child’s academic management needs, “listing everything” the team felt that his teacher needed to be aware of and that the child needed in order to be successful ( : 239; DOE Ex. 2 at 3). Ms. testified that to the “best of her knowledge” the team discussed every goal that was going to be included in the IEP ( : 239; see DOE Ex. 16). She believed that the goals on the IEP were appropriate for the child ( : 257).
The related service mandates were reviewed with each provider. Subsequently, the CSE recommended individual 4 x 45 and 1 x 45 in a group of two, individual speech therapy 4 x 60 and 1 x 60 in a group of two. The team terminated the recommendation of additional individual speech therapy 1 x 30 because the said that the child no longer needed it ( : 246-247; DOE Ex. 2 at 29). Since the program recommendation was “more than likely” going to be a public school, the team recommended counseling 2 x 30 in a group of three. Ms. explained that the would help the child with “transition” and that the team thought it would be beneficial for the child to be with other children in a group that was not based on academics ( : 247, 259-260; DOE Ex. 2 at 29). The minutes of the IEP meeting indicate that the team discussed the child’s “classroom anxiety, which was “probably part of the reason for recommending counseling. Ms. did not recall anyone at the review objecting to the recommendation ( 247-249).
Based on their notes taken at the meeting, Ms. and the psychologist drafted a Behavior Intervention Plan (“BIP”) after the meeting ( 272-273). The was created because the child has throughout the school day, such as , including , , , and “ .” Without the relevant “data,” Ms. did not know how frequently the occurred during the school day or the duration of those behaviors. However, she believed distractibility applied “throughout the school day” ( 249-250, 264-268). The information for the BIP was gleaned from the documents provided by , the “verbal reports” of the team members who work with the child and the observation ( : 250-251).
The team did not perform a written (“ ”). The members of the team discussed all of the child’s interfering behaviors and the strategies being used by and put them on the : 252, 263). Ms. noted that the Department of Education members of the team did not have access to the child “over an extended period of time” and so they could “not generate” the frequency and intensity of his behaviors that are part of an ; instead, they relied on the developed by which, she “assume[d],” were based on data the school was able to collect, and on information from the persons who had access to the child over the school year. While the team had a copy of the it did not have copies of the data; Ms. did not request that data and did not know “for certain” whether it was contained in the reports provided by : 264, 267). The behaviors on the are the ones that were prioritized by the participants at the meeting as being the “most important” at that time ( : 264, 271-272).
While the IEP contained short term objectives related to reducing the child’s “eye closing,” that behavior was not included in the . Ms. explained that according to the progress report, the behavior was “sufficiently reduced” and did not need to be targeted on t he , although it was something that the teacher and the 1:1 paraprofessional had to be aware of and work on ( : 268-270; DOE Ex. 2 at 5 and 8; DOE Ex. 11 at 2). Ms. testified that a “sensory diet” was not specified as a prevention strategy on the because in a District 75 class a sensory diet is “programmatic” and not something that the teachers “need to be told to do” ( : 278-279).
The IEP did not include “parent counseling” or training because it is “programmatic” in that it is part of the program offered by the Department of Education and parents discuss this program with the coordinator at the particular school the child attends ( : 256-257). Ms. believed that she told this to the parents at the meeting because she tells “all parents that parent training is programmatic,” but could not say with 100% certainty that the team had that particular discussion with the child’s parents ( : 282-283). There is no “generalization” goal in the IEP that refers to the home environment. However, generalization among environments in the school is aimed for in all of the goals ( : 304-305).
The recommendation for the child was a twelve month program in a class in a specialized school with a ; this program was deemed to be the least restrictive environment (“LRE”) for the child ( : 252-253, 255, 297-299). In determining the LRE for the child the team considered how the child was functioning in the classroom with other children “at the moment.” Ms. “believe[d]” that the child’s teachers at agreed that the child needed a small class setting but she did not recall whether anyone from or the parents indicated that a setting was appropriate for the child ( : 299-300, 307).
The classroom teacher would one who is “specifically trained to work with children with autism” and there would be a classroom paraprofessional as well.[2] There was no written transition plan in the IEP and no goals related to transition except for counseling. The team believed that the paraprofessional would be comparable to the support the child received at and would provide support for his transition from to the public school; the team “did not feel that there was any need for anything else” on the IEP with respect to transition and transition was not addressed at the meeting. Ms. acknowledged that the IEP does not include any goals to effectively assist the 1:1 paraprofessional in transitioning the child from to the public school. There was no discussion about methodology at the meeting and no discussion about using ABA for the child. Ms. explained that the school recommended for the child would have the child’s IEP and would be able to identify which methodologies were most appropriate to use with him ( : 280, 310). She testified that the child would receive all of his related services at the recommended school ( : 253-255, 257-259, 280-282).
Ms. did not recall the parents requesting extended day services and there was no discussion about such services. The team’s intent was to offer the child a program in which his needs could be met during the school day, both inside the classroom and outside in the hallways, gym or related service locations within the school building as well as in the general community as it is part of the program ( : 258-259, 301-302).
The Department of Education did not conduct any standardized testing or formal assessments regarding methodology for purposes of generating the 2011-2012 IEP and neither the parents nor the child’s teachers requesting any testing ( : 306, 317).
Ms. opined that the program offered by the Department of Education for the 2011-2012 school year offered the child the LRE for the current school year. She stated that the environment at is too restrictive for the child and she explained why she believed this to be so ( : 315-316). She testified that the Report supported her decision, as did the Classroom Observation report by . However, Ms. acknowledged that both the Report and the observation reflected the child when he had a 1:1 teacher in an ABA setting ( : 319-321; DOE Ex. 11 at 2; Ex. 15 ).
Ms. mailed a copy of the IEP to the child’s parents on June 20, 2011, before the start of the 2011-2012 school year and the day of, or the day after, it was “finalized” by the psychologist, the social worker and Ms. , based on the information and discussion at the meeting ( : 257, 284-286, 292-295). The District referral form was completed by the psychologist on the team and it was sent to the District placement office; that document contains sufficient information for the placement officer to determine what program to offer on the FNR ( : 286, 314-315). The FNR is dated June 14, 2011 and it was sent to the parents prior the “formal writing” of the IEP ( : 292-293; DOE Ex. 10).
is a certified special education teacher at . Ms. has a Master’s Degree in both special and general education and has training in both ABA and TEACCH. She also has training in “ ” and ; she has worked with children on the for eight years ( : 322-325). Her ABA training was through District and was five full days. She explained what she understood ABA to be. Her training was also through District ; in the past year she has attended at least one full day of training and three consecutive days of training ( : 340343).3 The District hired trainers from Texas who came to the school for a three day training session in TEACCH. Every few months District offers training in TEACCH as well. She explained how TEACCH is reflected in the classroom ( : 341-342). Ms. is not a BCBA and she did not know what is required in order to become a BCBA. Ms. stated that is not an “ site,” but that the school uses some ABA throughout the day, such as prompting, structure, individual scheduling and sensory breaks ( : 372).
During the summer of the 2011-2012 school year she taught a class of students who have . When the children came into the class Ms. performed assessments to make sure that the goals on the students’ IEPS were accurate ( : 364-365). The summer program began either the first week of July or the last week of June and she received the students’ IEPs at orientation, two days before the students arrived. There were three paraprofessionals in her class, two of whom were classroom paraprofessionals. The classroom paraprofessionals provided prompting, modeling and instruction for the “lower” students during small group or “work station” time. There was a paraprofessional assigned to a particular child ( : 325, 346-348, 360). The classroom was located on the second floor with about nine other classes ( : 359-360).
The age range of the students was from . The reading and math levels of the students were from grade and Ms. grouped the students based on those levels. Four of the students were verbal and one student was non-verbal ( : 325-326, 343-344, 348349). During the summer Ms. performed both formal and informal assessments ( : 326-327). The related services of , and were available for the students at the school and the school had adaptive physical education ( : 327).
Ms. described a typical school day during the summer, beginning with the arrival of the children at 8:10 a.m. The students started the day with “ ,” which is a yoga exercise. Ms. also did “ ” which is a “mood meter” to check on their feelings when they entered the class so that she and the paraprofessional could get them to relax before they started the day. were provided throughout the day depending on the particular
Citations to pages 339-379 refer to Ms. McGinley’s cross-examination of Ms. . needs of each child and there was a “ ” in the classroom. She also described an ELA lesson. For ELA Ms. taught to the whole group and then provided , small group instruction or individual work, depending on the ability of each child. The lessons ended with a return to the whole group to talk about what they learned; instruction was provided throughout the day ( : 327-329, 335, 349-350, 358, 370).
Ms. explained that during reading, the higher functioning students were in in a group with one “independent” child; the lowest functioning student had about the hours in the school day with either her or one of the two classroom paraprofessionals. She did not do a lot of “grouping” but rather did “a lot” of direct instruction ( : 351352). The school day ended at 2:50 p.m. ( : 370).
The students had lunch in the cafeteria. However, if the cafeteria was “too noisy” for some of the students those students went to the classroom with their paraprofessionals to eat ( : 329, 352).
Ms. testified that prior to the first day of school in July 2011 her assistant principal, Ms. , told her that the child was going to be in her class because she “was the one with the opening” on the floor ( : 378-379). She reviewed the child’s IEP and she opined that based on that document, the child would have fit into her summer class. She also testified that she would have been able to implement the goals on the IEP and the child’s management needs ( : 332). If the child had come into her classroom during the summer he could have been grouped for instruction with students on similar instructional levels. Three of the five students in her class were on a third grade reading level in decoding, as is the child as indicated on his IEP. There was one student on the child’s instructional level in math and so she would have been able to group the child with similar students for math ( : 337-338).
She described the “ ” noting that it had various equipment and tools to implement the occupational and physical therapy needs of the students. Ms. explained that the occupational therapist trained her and the paraprofessionals “how to press pressure” and “massage” the students ( : 332, 352, 358-359). The had a separate office in the school. Ms. had not been to their offices and did not know whether their equipment included .” She met with the in her classroom to discuss the students’ goals and their progress ( : 354).
There were visual supports in the classroom. In particular, each student had an individual schedule with breaks included, so that they could “see how the day is going to be” ( : 334-335). Ms. also described the manipulatives used in the classroom for math ( : 333).
Ms. was trained by her “coach” in how to take data; training sessions on taking data are conducted “every other week.”4 She did not know whether there were any BCBAs at the school ( : 362-363). Data on the students was collected daily based on IEP goals for the students and the assessments of each child. The data was graphed and the data collection sheets were “shared” weekly at team meetings “for accuracy and independenc[e] for the skill taught at that moment.” The data collection sheet was checked to see how the child was moving forward through each goal and skill. If a child is “not moving” changes are made in terms of “time” and “goals” ( : 338-339, 363365-368).
Strategies used in the classroom included reinforcement, repetition, discrete trial, checklists, “constant prompting,” structure, individual scheduling and breaks as needed. Every skill was “modeled” so that the students could “learn it and mimic.” The techniques used were constantly revised to reflect what was, and what was not, working with a particular child ( : 333). She explained that for reinforcement, she asked the parents what the things the children like so they could be used as positive reinforcement when they want to change certain behavior ( : 334). Ms. testified that the school has a “token economy” in which the students get “points.” At the end of the week or the month the students count their points and take them to a “store” where they can exchange the points for gifts ( : 335-336). Ms. explained that she was in constant communication with the parents. Each student had a communication book that went home every day and Ms. called parents as well.
Ms. was also trained in “UNIQUE” and “SANDI,” programs for taking data ( : 361-362). Parents were encouraged to spend the day in the classroom and to go on class trips. In addition, a school newspaper is sent home monthly ( : 336-337).
The school provides parent training several days of the school year. The training is run by each department separately. Training is also provided by the school itself and by District ; some of the training is done on Saturdays ( : 336, 356-357). If the teachers have to address an issue with the parents they notify the parent coordinator, who makes the arrangements. The school also has someone who paid home visits ( : 355).
None of the students from Ms. ’s summer class were in her class beginning in September 2011 ( : 345).
Ms. reviewed the child’s IEP and testified that the IEP did not include a transition plan. She acknowledged that she would have needed some time to familiarize herself with the child prior to being able to effectively transition him ( : 353).
THE PARENTS’ CASE
is the child’s father. He testified that the child has been at for about years. The child has “ , , some , , ” and “ ” issues ( : 639, 697). has been working with the child’s and he has a at the . Mr. has met with the and has attended parent-teacher conferences ( : 640-641, 651, 658). The child is in a and he has a teacher. Mr. observed the child’s class for about 30 minutes when they were “reviewing some things in the neighborhood.” At that time there was a teacher in front to the class and the child had his with him ( : 697-698).5 The child did not get up from his seat and Mr. did not think the child during the lesson ( : 699-700).
The parents attended an IEP meeting for the child on May 17, 2011. The CSE team discussed the child’s behavior, his progress, his programs, his progress reports and the goals and objectives for the 2011-2012 school year ( : 679-680). The child’s behaviors were discussed at the meeting but a was not developed at that time. The Department of Education has not conducted an of the child since he was about three years old and the child had never had a “ ” ( : 653-654). The CSE team discussed the child’s related services for the 2010-2011 school year and extended day services, but did
Citations to pages 659-708 refer to Ms. ’s cross-examination of Mr. . not recommend any related services for the 2011-2012 school year ( : 678-681). Rather, the team told the parents that it would “come back with a recommendation” (Eigen: 678679, 704). He did not ask for additional goals but deferred to the child’s teachers on that topic (Eigen: 706). There was no placement officer at the IEP meeting and after the meeting the parents were not offered an opportunity to meet with a Department of Education placement officer (Eigen: 655). Mr. did not complain about the constitution of the IEP team and did not ask the Department of Education to conduct any evaluations (Eigen: 678, 682).
On June 15, 2011 Mr. wrote a letter to stating that the parents had not yet received the IEP or an FNR; he was concerned because the child was in 12-month program and thus “time was of the essence” (Eigen: 642-643, 660-662; Parents’ Ex. E). He did not receive a response. The parents subsequently received an FNR dated June 14, 2011 and also received a copy of the IEP in June. Mr. called the recommended school numerous times but no one answered and no one responded to his messages. Mr. Eigen related this fact in a letter to the CSE Chairperson dated June 23, 2011. In that letter he stated that he was going to visit the school on June 27, 2011 at 9:30 a.m. (Eigen: 644645, 662-663, 682-683; Parents’ Exs. D, F).
Mr. went to the on June 27, 2011 and he described the building. At that time the school was in “disarray” because it was transitioning from the end of the school year to the summer school program ( : 646-647, 676-677). Someone took him on a tour of the school for about 45 minutes to an hour. The person who took him on the tour told him that he could not be shown the classroom the child would be in if he attended the school and that she could not tell him who the child’s teacher would be ( : 648, 677).
Mr. was told that the school was not an ABA site but that the teachers used TEACCH methodology (Eigen: 650, 670). Mr. did not “believe” that the child has ever been in a TEACCH based classroom or that the Department of Education ever assessed the child to see if he was responsive to TEACCH based programming (Eigen: 650). While he could not explain the TEACCH methodology, Mr. noted that “early on” when the child was first diagnosed, he and his wife read about, and had training in, the various methodologies (Eigen: 669). He described his understanding of ABA to be “learning something by repetition in discrete trials” until it is mastered (Eigen: 670). He did not know whether uses “prompting” with the child but he “believe[d] that it uses redirection” ( : 670).
The woman who took him on the tour of the school implied that if the child attended the school he may have a different teacher beginning in September 2011 than he would have over the summer (Eigen: 652, 674-675). Mr. believed that it would be a “very bad situation” if the child were to attend ( : 652).
In a letter to Mr. dated June 28, 2011 Mr. explained why was inappropriate for the child, that the child would attend for the 2011-2012 school year and that the parents would be seeking funding or reimbursement, or both for the tuition (Eigen: 663664; Parents’ Ex. LL). The child began the 2011-2012 school year at in July 2011 (Eigen: 664, 666-667).
Mr. testified that the child’s behaviors are reflected in the Department of Education document indicating when ABA methodology is appropriate for a child (Eigen: 655; Parents’ Ex. DD at 2).
The enrollment contract is dated August 19, 2011. The child’s mother signed the contract on September 7, 2011. The child began the 2011-2012 school year at in July 2011. The contact asks that it be returned by May 31, 2011. Mr. stated that it was not returned by that date because he did not “know if [they] knew what they were doing at that point” (Eigen: 686). Mr. did not know why the contract was not signed prior to the 2011 summer session; the parents made the first payment to the school on June 27, 2011 so that the child would “have a spot” if he was going to attend ( : 653, 683, 695696; Parents’ Exs. X, Y). The parents take a loan for the tuition at and they pay interest on the loan. When they are reimbursed by the Department of Education they “pay down” the loan and if the child attends the following year the line of credit is extended. The responsibility for payment is “ultimately on” the parents ( : 641). They paid the tuition for the current school year in three checks ( : 660, 684).
Following the filing of the Due Process Complaint the Department of Education did not convene a resolution meeting ( : 656). In addition to tuition reimbursement the parents are also seeking reimbursement of transportation expenses for the school bus that takes the child to school and home each day (Eigen: 656-658). On cross-examination Mr. acknowledged that” special education transportation” is specified on the IEP and he testified that he never contacted the Department of Education about providing transportation for the child. After he filed the due process complaint no one from the Department of Education contacted him about providing transportation for the child (Eigen: 702, 709).
, Ph.D., has a doctorate in educational psychology with an emphasis in developmental disabilities and special education and a Master’s Degree in special education; he is not a certified special education teacher. For the past 32 years he has worked with and taught adolescents and adults on the and has published in the field of autism but is not a BCBA ( : 472-473, 481, 510-511).6 He is currently the clinical and education director at upper school ( : 482).
The goal of the upper school is for the students to “graduate out” with friends and acquaintances, be employed and travel independently ( : 493-494).
Dr. and his colleagues conduct an and at times a “much more sophisticated and much more clinical” “ ,” for each student who attends in order to develop a BIP for each student. He explained why, as a general principle, either an or a is a necessary precursor to a , and testified that it is “generally required within the field of [ABA] and ethical standards” ( : 473-481). The intervention at is based on the principles of ABA, which, in his opinion, is a scientifically validated treatment approach for autism (Gerhardt: 480).
, a BCBA, is the curriculum director and the director of the outreach program at ( : 562). Ms. has a Master’s Degree in special education and is a BCBA (Ward: 542543; : 560-561; : 487). She has worked with students on the for 26 years and with students who have . She has also worked with students who have moved to inclusion environments ( r: 561-562). Ms. has published in the field of or ABA “a few times” and has presented on the subject “hundreds” of times ( : 562).
A head teacher at must have at least a Bachelor’s Degree in special education or a related field and New York State teacher certification. An “instructor” must have, at a
Citations to pages 510-527 and page 536 refer to Ms. Parkinson’s cross-examination of Dr. Gerhardt. minimum, a Bachelor’s Degree in education or a related field but the school may “go outside that” parameter if the person is potentially a good candidate. The school also “looks for” a “fairly steady work history” and “experience in the field” ( : 488-489).
uses a teaching environment (Gerhardt: 491). The school day at is from 8:45 a.m. to 4:45 p.m. Instruction takes place throughout the day and the students go into the community in order to use the skills they are taught in “the real life environment” ( : 489; : 542). There are three classrooms in the upper school of and the school has three head teachers; there are five students in two of the classes and six students in the child’s class ( : 482-483). The age range of the students in the child’s class is from . Dr. testified that the child is .” Three of the students in the class are “very similar to the child” and two of them have more language, although none are “conversational”; Dr. explained the benefit to the child of being in a class with students who have greater communicational skills than his own ( : 483-484).
The child has a during the school day but to promote generalization the staff rotates among the students during the course of the day ( : 494-495). Dr. opined that it would not be helpful for the child to have a paraprofessional during the day because it would not provide generalization and if that person were to leave the child it would be necessary to “rebuild[ ] everything from the ground floor in terms of stimulus control, relationship” and “rapport” (Gerhardt: 496-497).
is currently enrolled in a Master’s Degree program in special education. She has worked at for eight years and for the prior four years worked at another school serving students with special needs (Ward: 538-539). She is “very experienced” in employing the principles of ABA ( : 564). Ms. is Ms. ’s direct supervisor; she speaks with Ms. her every day and is in the classroom four times a week ( : 543-544; 566).
Ms. is the head teacher in the child’s class for the 2011-2012 school year ( 539). She “transitioned” into the classroom in July 2011, and spent the time getting to know the child and the other students in the class ( : 546). There are three other teachers in the room, one of whom is a New York State certified teacher, and also a New York State licensed pathologist, , who has worked with the child since July 2011 ( : 540-541, 545-546, 551-552; : 576-577; : 484-485). She testified that there are five students in the class ( : 542). The teachers rotate among the children and the child has a teacher throughout the day ( : 542, 552-553).[7]
On Monday through Thursday there is a group science lesson for about 30 minutes and on Friday there is a group health lesson for about 30 minutes ( : 556). For certain portions of the day two of the students work in a dyad ( : 554).
The child’s IEP was developed in July 2011 by , another teacher in the class, and it was revised in September 2011 by Ms. , Ms. and Ms. . The child also has a written to address his , which include “vocal and motor” and “ ,” as well as a “ ”( : 544, 554; : 566). She noted that the fear is apparent if the child passes any peers in the hallway that exhibit any type of “ ” ( : 558).
The students in Ms. ’s class have academic levels between kindergarten and second grade, and the child is in the middle of that range. The ages of the students are from eleven to 13 and the child is in the middle of that range as well. Ms. stated that the child functions much as his classroom peers ( : 544-545). Ms. testified that the child is appropriately placed in his class and she gave the reasons for her opinion ( : 567-568).
are provided to the child in the classroom five hours a week and once in “group” with four or five other students, one of whom is from another class. At that time the child has the opportunity to interact with his peers. Ms. , Ms. and Dr. explained the benefit of the “pushing in” program ( : 547, 554-555; : 578-581, 586-587; Gerhardt: 490, 497-498). 8 Ms. explained that “consistency” is important for the child ( : 582).
is 80 to 90% “pull out” in the because of the equipment necessary to do some of the therapy. However, this past year the school has started to integrate occupational therapy into the classroom “as much as possible” ( : 548, 556; : 498). The child’s handwriting is “illegible” and handwriting skills are worked on in the classroom, based on the “feedback” from the occupational therapist ( : 548-549). The child also works on “keyboarding” skills and generates emails to his parents or his ( : 549). Ms. explained how she helps promote independence and self-sufficiency for the students that she supervises. For the child, she is teaching self-management through the use of a “timer” and a token economy ( : 569-570).
Ms. has “very frequent” communication with the child’s parents; she emails them “at least two to three times a week.” She communicates with his home therapist daily to relate the activities the child worked on at school so that they can be generalized at home ( : 549-550).
Ms. is responsible for analyzing the data of the students in the child’s classroom. She develops the and sets up the data systems used in the that she thinks are appropriate ( 563). The staff collects data every day on behavior and on different academic tasks ( : 556-557; : 563, 572; : 506).9 Ms. , Ms. and Ms. check the data together to see whether the and if he is not, they “intervene.” However, so far the child has been making “steady progress” in his behavior, in particular, his “vocal stereotypy” ( : 557; : 563).
Dr. visits the child’s classroom “almost every day” and he opined that the child is “absolutely” appropriately placed in that classroom. He explained the basis for his belief, noting that even when the child is in a group setting he has a person who is “specifically trained to work with him” ( : 485-486). Dr. noted that the child currently needs to be supported by a instructor 85 to 90% of his time in the classroom, and he explained the reasons for this need ( : 492-493). He described the which include “ ” and noted that he responds to a “ by “ .” The child has a “ ” in . The was initially developed when he entered the lower school and it has since been modified with input from members of the staff, including Dr. , Ms. and Ms. ( : 487, 499, 506).
Ms. testified that while the child is in a group for a portion of his program, most of the program is still and she explained why the child’s still needs at this time. Specifically, she stated that the child has “ in attending skills” and that his “ ” interferes with his learning at a high rate. He also has a , although that “ ” has “gotten better” ( : 570-571).
Citations to pages 572-574 refer to Ms. ’s cross-examination of Ms. .
Ms. opined that the child is making meaningful progress at since July 2011, and she described that progress ( : 550-551). Ms. testified that the child is making “significant progress” in both , and she described that progress, including an instance where he verbally described his emotions when he was upset about something “using sentences” ( : 579-580). Dr. opined that the child is making meaningful progress this school year both . He described that progress and stated that the progress is supported by “data” (Gerhardt: 500).
There are team meetings each week and every two weeks a meeting focuses on one student from each classroom ( : 499-500).
Dr. is familiar with TEACCH methodology, which he did not believe would be an “appropriate or helpful methodological approach” to intervention for the child ( : 501502). He explained that he believed TEACCH to be “a very restrictive intervention” that is “severely lacking in data” (Gerhardt: 502).
testified as a witness pursuant to a subpoena by the parents. She has New York State licenses in special education and in administration and supervision. She is currently the assistant principal at ( : 725-726). Ms. testified that Ms. worked during the summer of 2011 and that the students in her class were “basically” on a first to third grade reading level. Ms. reviewed the child’s IEP and she testified that if the child had attended the school in July 2011 he would have been in Ms. ’s class (Ortiz: 727-728, 730, 734).
Ms. did not know who the child’s teacher would have been in September 2011. She noted that she did not have the class lists for September and thus did not know whether any of the students in Ms. ’s July class moved to other classes in September (Ortiz: 735-736). She stated that in July 2011 no RSAs were issued because the school had “enough coverage” ( : 744-745). She did not know the names of the related service providers who were in Ms. ’s class in July or September 2011 ( : 742, 746). During the 2011-2012 school year none of the parents raised any issues with respect to “bullying” (Ortiz: 747).
There are no BCBAs at the school and TEACCH is a “major part of the program (Ortiz: 750-751). Ms. testified that all paraprofessionals have to have six college credits, have to pass a paraprofessional exam and have to take a child abuse course (Ortiz: 740-742).
There is an after school program available twice a week from 3:00 p.m. to 5:00 p.m. called “Chance; the program is instructional but has some other “exercise” activities. The program is has two teachers, a paraprofessional and about 30 students ( : 748-749). There is no instruction available to the students after the end of the school day ( : 749).
The parent coordinator facilitates workshops monthly and the teacher communicates with the parents daily via a “communication board.” The teachers also communicate with the parents by telephone “in terms of coming in if they need any kind of support.” Ms. is also available to work with the parents and there is also help if some kind of program is needed ( : 750).
also testified pursuant to a subpoena by the parents. She has a doctorate in special education and works for the Department of Education as the Director of Placement for District 75 ( : 599). For the 2011-2012 school year the placement officer for was ; Dr. is her supervisor ( : 599-600).
Dr. explained that “typically” the placement office receives a “District Referral Form” (“Form”) that provides a “snapshot” of the student. The placement officer reviews the form and consults with Dr. if there are any questions ( : 601-602). The Form for the child indicates that the child’s case is a “ ,” which “typically” means that the student is attending private school and the Department of Education is funding the placement (Minondo: 603-604). The Form also describes the child’s behaviors. Dr. explained that “typically” the placement office looks at a child’s behaviors to ensure that the school it is recommending for the child can support a student with those behaviors ( : 605).
When the placement office looks for a school for a 12-month student the placement would be the same for the summer session as it would be in September, in order to minimize the amount of transition for the child and for continuity ( : 606-607, 609). If the placement office knows that a child comes from an site it would “look into” what sites are available ( : 610-611). She stated that if a child is having success with a particular methodology the placement officer “would like to see him continue with it” ( : 611). The Form indicates that the main site of was offered for the child ( : 609-610).
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 related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 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; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.
The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parents, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate; and 3) equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985).
** *
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.
The parents allege in both the Due Process Complaint and their Post-Hearing Brief that, for numerous of reasons, the Department of Education failed to meet its burden under Prong I because the IEP was procedurally and substantively defective. I will address only those issues necessary to reach a determination in this case.
The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053. To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits Rowley, 458 U.S. at 188-189; R.E. and M.E. 785 F. Supp.2d at 40, and that the recommended program is the least restrictive environment (“LRE”) for the child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.
The parents allege, among other things, that the child’s IEP for the 2011-2012 school year was defective because: 1) the CSE did not include the parents in the site placement or put the site on the IEP; 2) the CSE team did not conduct an FBA; 3) the IEP does not include a transition plan or appropriate goals to facilitate the child’s transition from a ABA program at to a program in a public school; 4) the CSE failed to include parent training and counseling on the IEP. The parents also assert that the Department of Education presented evidence only of the recommended placement for the summer of 2011 when the child would have been in a different class with a different teacher beginning in September 2011. In addition, the parents contend that the 6:1:1 program recommended for the child was not appropriate to meet his educational needs. (Parents’ Post-Hearing Brief; Parents’ Ex. A).
In developing a IEP a school district must comply with the procedural requirements set forth in the IDEIA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 (2nd Cir. 1997); R.E. and M.E., 785 F. Supp. at 40-41. While not all procedural violations are considered “material and 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); Perricelli v. Carmel Cent. Sch. Dist., 2007 U.S. Dist. LEXIS 9873, at *30 [S.D.N.Y. Feb. 9, 2007], Application of the New York City Dep’t. of Educ., Appeal No. 07-046, “the Supreme Court and congress have emphasized the importance of the procedural provisions found in the IDEIA.” R.E. and M.E., 785 F. Supp. 2d at 40-41, citing Rowley, 458 U.S. at 205. When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits . 20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; Perricelli, 2007 U.S. Dist. LEXIS 9873, at 30-31; Application of the New York City Dep’t. of Educ., Appeal No. 07-046.
In this case I find that several procedural and substantive violations taken together constitute a violation of FAPE.
Parent Participation in the Placement Process
The parents argue that they were not afforded an opportunity to meaningfully participate in the placement process. Specifically, they assert that no placement officer was at the IEP meeting and that there was “no conversation” regarding the parents’ right to speak to a placement officer. They also assert that (Parents’ Post-Hearing Brief at 9, 18-19; Parents’ Ex. A at ¶¶ 29-31, 54). This claim is rejected.
Here, the parents fully participated in the IEP meeting and thus were involved in the discussion about the program that was ultimately offered to the child. They also had the opportunity to express their opinions about the proposed program. While the parents argue that they were entitled to participate in selecting an appropriate school site for the child, the Second Circuit has held that parents are not entitled to participate in a specific site selection and that there is no requirement that a specific school or location be discussed at the IEP meeting or included on the IEP. T.Y. v. New York City Bd. of Educ, 584 F.3d 412, 419-420 (2d Cir. 2009).
The FNR provided to the parents in June included the name and phone number of the person to contact if they wished to “discuss the final recommendation further” (DOE Ex. 10).[10] There is no evidence that the parents took advantage of this opportunity. Rather, the child’s father went to visit the site and then notified the CSE Chairperson why he was rejecting it. Thus, in light of the facts and the prevailing Second Circuit case law I find the parents’ current claim regarding their participation in the placement process to be without merit.
Failure to conduct an FBA and Appropriateness of the BIP
The parents assert that the CSE’s failure to conduct an FBA was a material violation of FAPE (Parents’ Post-Hearing Brief at 4- 5, 14, 17: Parents’ Ex. A at ¶¶ 6, 7.8). I find this claim to have merit.
In this case the CSE participants agreed that the child’s behaviors interfered with his education and thus that a BIP was necessary. Ms. conceded at the hearing that no written FBA was conducted for the child. Rather, she explained that the BIP was developed after the IEP meeting and that it was based on: 1) information about the child’s interfering behaviors gleaned from the child’s teachers and providers who participated in the meeting; 2) the existing ; and 3) the Department of Education’s observation of the child. Ms. opined that “in actual fact” the discussion and document review constituted an FBA ( : 251-252, 263). Notably, Ms. conceded that the Department of Education members of the CSE who developed the did not have evaluations or any data and did not know the frequency, intensity or duration of the child’s interfering behaviors. Rather, she testified that she “assum[ed]” that the members of the CSE who participated in the discussion and those who wrote the Behavior Reduction Plan based their information “on data they were able to collect” ( : 264-265).
The requirements of a proper FBA are set out in Sections 100.1(r) and 200.22(a)[2][3] of the Regulations of the Commissioner of Education (Commissioner’s Regulations) and are specified in R.E. and M.E., 785 F. Supp. at 26-27. It is clear that a verbal discussion about the child’s behaviors and a review of the Behavior Reduction Plan that was developed for the prior school year was not sufficient to meet those requirements. The CSE members writing the BIP had no knowledge of the child. Ms. Ziegler, the Department of Education psychologist who observed the child in the classroom, did so for only one lesson for an unspecified period of time. The BIP was developed without any specific information about the frequency, duration or intensity of the child’s behaviors. Moreover, there was no evidence that the for the child for the 2010-2011 school was relevant with respect to the child’s behavioral needs for the 20112012 school year. Finally, I note that the was developed without reference to any evaluations or assessments whatsoever.
I find that the absence of an and the reliance of the Department of Education’s CSE members on only a discussion of the child’s interfering behaviors and the child’s then-current Behavior Reduction Plan for 2010-2011, resulted in non-compliance with state regulations and thus rendered the BIP inappropriate. See 8 N.Y.C.R.R. §§ 200.1(r), 200.22 (a)[2][3]; R.E. and M.E. , 785 F. Supp. at 41-42. Indeed, Section 200.22 (a)(2) of the Commissioner’s Regulations specifically states that the “ shall not be based solely on the student’s history of presenting problem behaviors.” See R.E. and M.E. , 785 F. Supp. at 41. Moreover, I find that the BIP included in the child’s IEP does not present a sufficiently specific description of the suggested strategies or any guidance on how the strategies are to be implemented. This is particularly troubling since the IEP recommends a program in which the child’s 1:1 paraprofessional would be primarily responsible for implementing the BIP and neither the teacher nor the paraprofessional would have known the child prior to his entry into the classroom. Thus I find that the failure of the CSE to conduct a proper FBA in compliance with the Commissioner’s Regulations was a material procedural violation of the IEP process, rendered the BIP inappropriate and deprived the child of a FAPE.
The particular facts of this case distinguish it from those cases cited by the Department of Education in its Closing Brief, in which some courts have held that the failure to conduct an FBA where one was needed did not, by itself, constitute a denial of FAPE. See DOE Closing Brief at 1. For example, in A.C. and M.C. v. New York City Department of Education, 553 F.3d 165,172 (2d Cir. 2009). The Second Circuit found that the failure to conduct an FBA did not violate FAPE. In that case both the Director of Special Education for the public schools and the school psychologist testified that an FBA was “unnecessary.” In addition, a district-wide special education teacher testified that she did not believe an FBA was warranted. The Court deferred to the findings of the SRO in concluding that even if the Commissioner’s Regulations had been violated, the IEP was nevertheless legally adequate because it satisfied the requirement that the school district “consider the use of positive behavioral interventions and supports, and other strategies to address that behavior” in conformance with 20 U.S.C. §1414(d)(3)(B)(i). Id. at 172-173. Here, in contrast, there was no testimony that an was inappropriate or not warranted. In fact, Ms. testified that the required a . And, she justified the lack of an by opining that the discussion at the CSE meeting and the review of the prior was the equivalent of an . Moreover, as indicated above, I find that the itself was not sufficiently specific for a new teacher and new paraprofessional in a new school to address the child’s behaviors.
For the reasons stated above I find that the failure of the CSE conduct an FBA in this case contributed to a denial of FAPE. Transition Plan
The parents fault the IEP for not including a plan or services to help the child transition from his program at to the program recommended in a District school (Parent’s Post-Hearing Brief at 4, 6, 18; Ex. A at ¶ 27). I find this claim to have merit.
While there is no requirement that an IEP include a specific transition plan for a student attending a new placement (DOE Closing Brief at 11); A.L. and V.R., 2011 U.S. Dist. LEXIS 85995 (S.D.N.Y. Aug. 2, 2011). ; E.Z.-L by her parents R.L. and A.Z. v. New York City Dep’t of Educ, 763 F. Supp. 584, 598 (S.D.N.Y. 2010), an IEP should include specific services to assist the child in transitioning from one school to another. E.Z.-L . 763 F. Supp. at 598.
In A.L. and V.R. and EZ-L , supra, the respective federal district courts found that the hearing testimony by the Department of Education’s witnesses sufficiently described how each child’s transition would be facilitated. Both Courts held that the testimony alone was sufficient to establish that the school would have met the child’s transition needs. A.L. and V.R. 2011 U.S. Dist. LEXIS 85995 at 33; E.Z.-L, 763 F. Supp. at 598 Here, however, not only was there was no such detailed testimony about transition services, Ms. testified that transition was not even discussed at the IEP meeting. In addition, she acknowledged that there were no transition services on the IEP and no transition goals except for “counseling.” And, Ms. , the teacher of the class proposed for the child, reviewed the IEP and testified that there was no transition plan ( : 353). While Ms. stated that the paraprofessional would assist in transition, she acknowledged that there were no transition goals on the IEP that would assist the paraprofessional in helping the child transition either from to the public school or from methodology to the combination of methodologies used in Ms. ’s class ( : 255, 259, 280-282).
Ms. gave no testimony at all about how she would help the child with his transition. Rather, she acknowledged that she would have needed some time to familiarize herself with the child prior to being able to effectively transition him ( : 353). Ms. the assistant principal of , did not provide any testimony regarding how the child would be helped to transition from to the public school.[11] Moreover, a review of the child’s IEP does not indicate any long term goals or short-term objectives related to transition (DOE Ex. 2). Thus, there is absolutely nothing to even suggest how either the teacher or the 1:1 paraprofessional would help the child transition from one placement to the other or from one methodology to another.
I find that the utter lack of testimony or evidence regarding any type of transition services, goals or plan for the child clearly distinguishes this case on its facts from A.L. and V.R., supra, cited by the Department of Education in its Closing Brief at 11. In that case the teacher of the proposed class testified in detail about how she helps students to transition and thus the Court upheld the SRO’s finding which was based on the testimony showing the teacher’s “expertise and practice in transitioning students into new placement. A.L. and V.R., 2011 U.S. Dist. LEXIS 85995 at 11, 32-22. Here, in contrast, there was no testimony at all about how the teacher would aid in the child’s transition.
For the reasons indicated above I find that the IEP was deficient in this regard and amounted to a denial of FAPE. Parent Training and Counseling
The parents also argue that the Commissioner’s Regulations §200.13 and CFR § 300.34(c)(8) required the CSE to include individualized parent training and counseling on the child’s IEP (Parents’ Post-Hearing Brief at 8, 17; Parents’ Ex. A at ¶ 5). I find this claim to have merit as well.
Section 200.13 of the Commissioner’s Regulations, which relates to Educational Programs for Students with states that: “Provision shall be made for parent counseling and training as defined in section 200.1(kk) of this Part for the purposes of enabling parents to perform appropriate follow-up intervention activities at home.” §200.13(d). Section 200.1(kk) defines “parent counseling and training” as “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implement of their child’s individualized education program.” Id; R.K., By Her Parents R.K. and S.L. v. New York City Dep’t of Educ, 2011 U.S. Dist. LEXIS 32248 (E.D.N.Y., January 21, 2011), adopted by No. 09-CV-4778 (KAM)(RLM) 2011 U.S. Dist. LEXIS 32235 (E.D.N.Y. Mar. 28, 2011), appeal pending.
Section 300.34(c) of the CFR enumerates the related services covered by the IDEA, and parent training and counseling is included in those services. 34 CFR §300.34(c)(8). That statute defines parent training and counseling as:” (i) assisting parents in understanding the special needs of their child; (ii) Providing parents with information about child development; and (iii) helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP.” Id.
Both the SRO and the United States District Courts have held that parent training and counseling must be included in a child’s IEP. R.K. 2011 U.S. Dist. LEXIS 32248, Danielle G. v. New York City Dep’t of Educ., 2008 U.S. Dist. LEXIS 60192 (E.D.N.Y. August 7, 2008); Application of the Board of Education, Appeal No. 05-058; Application of the Board of Education, Appeal No. 05-051. I find that the omission of parent training and counseling on the child’s IEP violated New York regulations mandating that parents of children with autism receive these services and that the services be included on the child’s IEP. Id. Ms. testified that she did not recall whether parent training and counseling was discussed at the IEP meeting but stated that it is programmatic in District schools ( : 256-257, 282-283). At the hearing Ms. and Ms. , the assistant principal of M testified about various opportunities the parents would have for training sessions. However, this “after the fact” testimony did not relieve the CSE of including this related service on the child’s IEP, See R.E. and M.E. at 41-42 and I find that the failure include parent training and counseling on the IEP, in conjunction with the absence of a discussion about that service at the IEP meeting, contributed to a deprivation of FAPE in this case.
The Proposed Program and Placement . The parents assert that the District failed to meet its burden of demonstrating that the program in a District school was appropriate and would have provided the child with a FAPE (Parents’ Post-Hearing Brief at 3-4, 10, 15-16, 19-21; Parents’ Ex. A ¶¶ 1, 19, 46. 55-59, 62, 68).
A. At the outset, the parents contend that the Department of Education failed to meet its burden under Prong 1 because it presented evidence only of the proposed summer placement for the child and no evidence of the class the child would have been placed in for September 2011. I find this claim to be without merit.
In this case, Ms. , the teacher of the proposed summer class, testified that none of her summer school students were in her class in September. The parents maintain that in light of this testimony, the child would have been moved to another class in September 2011 and that the Department of Education was required to present evidence that both classes would have provided the child with a FAPE. The Department of Education did not introduce any evidence or testimony about a proposed class for the child beginning in September. The parents compare the change of teacher and at least some classmates to a situation in which the parents would be asked to “try out” a placement in order to qualify for reimbursement relief and assert that under the current law they are not obligated to participate in such a “try out” (Parents’ Post-Hearing Brief at 3). Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009).
The Department of Education has the burden of demonstrating that it provided the child with a placement that was “reasonably calculated to provide the child with an educational benefit.” Rowley, 458 U.S. at 188-189. Since, as the parents state in their Post Hearing Brief, the 12-month school year in New York City begins in July and ends the following June. (Parents’ Brief at 3, f.n. 4), it stands to reason that the Department of Education must show that it had an appropriate placement for the child on the first day of school, which would have been the first day of the summer term in July 2011. I note that if the child had been recommended for a 10-month school year the Department of Education would not be required to show that the class, the teacher and the students would remain the same for the duration of that school year. Moreover, the IEP recommended a program and related services in a District school. Although the child’s particular classroom may have changed in September, the program and the school itself remained the same.
Indeed, the parents cite no authority that requires a different conclusion as I find the analogy to Forest Grove, supra, to be without merit. In that case the United States Supreme Court held that the parents were not required to “try out” a public school program before asking for reimbursement of private school tuition. Forest Grove Sch. Dist., 129 S. Ct. at 2484. Here, the issue is simply whether the placement offered for the child on the first day of the 12-month school was appropriate.
Thus, I find that the fact that evidence was provided only for the summer school class did not, by itself, deprive the child of a FAPE.
B. The parents also posit that a program was not appropriate for the child in that it was not reasonably calculated to provide the child with an educational benefit. I find this claim to have merit.
a) To begin, I note that except for ,a for the Department of Education who observed the child for only one math lesson (during which the child had a at his side) the only witnesses at the CSE meeting who knew the child personally were those from . And, there is no evidence or testimony to support a finding that any of the witnesses believed that a program with a paraprofessional would be appropriate for the child. In addition, I note that that the Department of Education did not evaluate the child and based on Ms. ’s testimony at the hearing, the recommendation was made without reference to any evaluations whatsoever.
At the hearing, the only witnesses with personal knowledge of the child were the child’s father and the witnesses from . Dr. , the Clinical and Education Director at the school testified that he visits the child’s classroom almost every day. He stated that the child currently requires support by a instructor 85 to 90% of the school day noting that as the child gets older his goals become “more complex” (Gerhardt: 492-493). Ms. , the BCBA at who supervises the child’s teacher and is in the child’s classroom four days a week, testified that the child needs at this time because he has “quite a major deficit in attending skills” and his “ ” interferes with his learning at a high rate ( : 566, 570-571). As noted, when Ms. observed the child at he was working with a teacher.
Based on the facts noted above, I find that the Department of Education failed to present any evidence to support a finding that the child would have benefitted from a program without intensive teacher support on a basis. In making that determination I note that the Department of Education did not provide any evidence of the qualifications, experience or training of the 1:1 paraprofessionals assigned to students at the school and thus did not demonstrate that that the paraprofessional assigned to the child would be equivalent to that of a instructor. See R.E. and M.E. at 41.
b) The parents also assert that the proposed placement primarily used TEACCH methodology which was not appropriate for the child.
At the beginning of the 2011-2012 school year the child was old years old and had been in a program since . While the SRO has held that an IEP is not required to include a particular methodology, Application of the Department of Education, Appeal No. 09-092, I note that the child’s behaviors as described by the participants at the CSE meeting and the impartial hearing fit the description of students who would benefit from ABA methodology as stated in New York City Department of Education’s statement on ABA Methodologies (Parents’ Ex. DD).
While Ms. , the teacher of the proposed class, testified that she uses some methodology that is consistent with , she and Ms. also testified that the school primarily uses the TEACCH methodology. I note that in addition to the lack of transition goals and objectives on the IEP for the transition from to the public school (see supra), there was nothing on the IEP or any evidence or testimony at the hearing about how the child would be transitioned from a ABA program to the TEACCH methodology. While Ms. and Ms. testified about the role of the behavior paraprofessional in the child’s education, significantly, as previously noted, there was no testimony or any evidence to show how the paraprofessional assigned to the child would have been able to aid in his transition or whether he or she had any experience working with students schooled solely in . Rather, the only testimony was that paraprofessionals must have six college credits, pass an exam and take a child abuse course (Ortiz: 740-742).
c) In addition, the parents assert that the proposed placement did not conform to New York State law in that it violated the Commissioner’s Regulations See 8 NYCRR §§200.6(a)(3), 200.6(h)[2][5] with respect to the child’s individual needs, age range and functional ability.
Ms. testified at the hearing that the students in her July 2011 class ranged in age from 11 to 14 and that their academic levels ranged from ( : 325-326, 343-344, 348-349). I find that the age range in this class violated the Commissioner’s Regulations in that it exceeded the “bright line” 36 month age range specified in Section §200.6(h)[5]. The class also failed to comply with the requirement in the Commissioner’s Regulations that the composition of special education classes be based in part on the students’ similarity in their academic achievement and physical development as mandated by Section 200.6(h)[2].
In W.T. and K.T. on behalf of J.T. v. Board of Education of the School District of New York City, 716 F. Supp. 2d 270 (S.D.N.Y. 2010), United States Magistrate Frank Maas upheld the decision of an SRO who determined that the violations of those sections of the Commissioner’s Regulations did not result in a denial of FAPE. The SRO based his decision in part because a “subset” of students in the proposed class was comparable to the student. Magistrate Maas in his Report and Recommendation that the SRO’s reasoning was “troubling” because it substituted the view of a single administrative judge for those of the State Education Department (“SED”) arrived at through a regulatory process. Magistrate Maas was also troubled because he found that the SRO’s reasoning “renders the SED regulations largely a nullity in any situation in which a handful of students are roughly comparable to the student seeking administrative review.” Id. 291-
292. Nevertheless, despite his reservations, Magistrate Maas upheld the SRO’s decision on the ground that the Second Circuit “has expressed considerable deference to SROs in IDEA cases, particularly where the SRO Decision is, as here, detailed and reasoned.” The court, citing Grim, 346 F.3d at 380-381, stated further that “the Second Circuit seems to have gone so far as to suggest that this Court must defer to the SRO on any issue that could possibly be construed as a matter of contested educational policy.” Id. at 292.
In this case there is no prior decision that requires deference. Rather, I adhere to the reasoning of Magistrate Maas on the substance of this issue and give deference to the Commissioner’s Regulations. I find that those regulations, promulgated by the SED, were violated by both the age range of the students in the proposed class, which was more than 36 months, and the functional levels of those students, which spanned a range of seven years. This violation too, denied the child of a FAPE.
d) Finally parents argue that the Department of Education was not able to demonstrate that would be able to provide the child’s related services at the school. In support of their claim the parents produced a “Special Education Service Delivery Report” (“SESDR”) dated May 20, 2011 (Parents’ Ex. G).
I find that the report, which addresses a different school year, does not, by itself, support a conclusion that had the child attended the school would have been unable to provide his related services on site. Rather, as the Department of Education notes in its Closing Brief (Closing Brief at 15), such a conclusion would rely on speculation which is not sufficient to support a denial of FAPE. See M.S. v. New York City Department of Education, 2010 U.S. Dist. LEXIS 87682 at 20 (E.D.N.Y. 2010); 10-060. In making that determination I note that Ms. testified at the hearing that all of the students in her July 2011 class received their related services in the school and Ms. testified that no RSAs were issued during the summer of 2011 because the school had sufficient coverage ( : 327; Ortiz: 744-745). There was no evidence to rebut this testimony.
***
In accordance with my findings on the parents’ claims as detailed above, I find that that on both procedural and substantive grounds the Department of Education failed to meet its burden of demonstrating that it provided the child with a FAPE for the 20112012 school year. None of the remaining issues raised by parents or the Department of Education would require a different conclusion.
II.
Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; 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. 11-053. In order to meet that burden parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89. Ultimately, the issue turns on whether a placement - 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; R.E. and M.E., 785 F. Supp.2d at 44-45. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. 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).
I find that the parents have met their burden in this case; the testimony in support of this determination is presented in detail above with citations to the record; citations will not be included here. To summarize, there are six students in the child’s class, each of whom work with a instructor and the age range is from years old. Dr. the educational director of the school, Ms. , the child’s head teacher, and Ms. , the supervisor all testified why the class is appropriate for the child. Dr. testified that two of the students in the class have more , which, he explained, not only serves as a role model but “ ] to .”
Dr. also explained how the school promotes “generalization” for the child in that his 1:1 instructors rotate throughout the day. The child also has the opportunity to work in a dyad during the day and once a week he has in a “group” with the , Ms. . Both of those opportunities help to promote the child’s social skills as well as his independence. The child receives at and the teachers and therapists use a “token economy” to help teach in self-management. In addition, while evidence of progress and achievement is not required to sustain the parents’ burden, all of the witnesses gave examples of the child’s progress since the beginning of the school year.
The Department of Education makes several arguments in its Closing Brief in an attempt to show that the parents have not sustained their burden under Prong II (DOE Closing Brief at 22-25). I find those allegations to be without merit. In making that determination I note, as indicated above, that the law does not require parents to show that a private placement furnishes every special service necessary to maximize their child's potential. Rather, they need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89. In light of the forgoing findings of fact and the more detailed testimony elsewhere in this Decision, I find that the parents sustained their burden of demonstrating that is an appropriate placement for the child for the 20112012 school year. III.
Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. Here, the evidence clearly supports a finding that the equities favor the parents.
The IEP meeting was conducted on May 17, 2011. When the parents did not receive either a copy of the IEP or the FNR by June 15,2011 the child’s father wrote a letter to the CSE Chairperson indicating that he had not yet received the FNR and that “unless the DOE offers the child an appropriate program and placement” the child would continue to attend (Parents’ Ex. C). No one responded to the father’s letter and the parents received the FNR sometime after June 15, 2011, the date on that document, which was only about three weeks prior to the beginning of the 12-month school year. Mr. credibly testified that his efforts to contact the school were unsuccessful and he wrote another letter to CSE Chairperson on June 23, 2011 informing him of his unsuccessful attempts to contact the recommended school and indicating that he was going to go to the school without an appointment on June 27, 2011 (Parents’ Ex. D).
Mr. Eigen visited the school on that date and in a letter to the CSE Chairperson dated June 28, 2011 he stated why believed the placement to be inappropriate and again indicated that he child would be attending “in the absence of an appropriate placement” for the the 2011-2012 school year (Parents’ Ex. LL).
I find the Department of Education’s assertion in its Closing Brief that the equities do not support the parents because they did not provide the District with 10 day notice of their unilateral placement of the child at to be without merit (DOE Closing Brief at 28). As noted above, Mr. informed the CSE Chairperson in his June 15, 2011letter that he had not yet received either the IEP or the FNR and that the child would be attending absent the offer of an appropriate placement and program by the Department of Education. This letter clearly provided more than 10 days notice to the CSE. In any event, the parents should not be penalized for the fact that the CSE provided the IEP and the FNR within weeks of the beginning of the coming school year and that the school did not respond to Mr. ’s subsequent attempts to set up a visit. It was those circumstances, and not any delay on the part of the parents, that left little time for the parent to view the proposed placement and determine whether it was appropriate. Thus, I find that the equities of the case weigh in favor of the parents.
***
The parents are also requesting reimbursement for payments made to the bus company that takes the child to and from . In their Due Process Complaint the parents allege that the Department of Education failed to offer any special education transportation for the child (Parents’ Ex. A at ¶ 50). In fact, the IEP indicates on the first page that the child is entitled to special education transportation (DOE Ex. 2-1). Mr. Eigen testified at the hearing that he did not ask the District to provide transportation for the child (Eigen: 702). In light of this fact I cannot draw a conclusion that the District would have denied this service to the child had it been requested. Therefore, I find that the parents are entitled to payment for transportation costs in the amount that the Department of Education would have paid for the child’s transportation rather than the amount expended by the parents.
ORDER
In light of the above findings of fact, it is hereby ordered that:
1) The parents are to provide the Department of Education with a copy of the contract for the 2011-2012 school year and proof of tuition payment. Within 30 days of the receipt of those documents the Department of Education is to reimburse the parents for the tuition paid.
2) The parents are to provide the provide the Department of Education with a copy of the bus contract for the 2011-2012 school year and proof of payments made for the service. Within 30 days of the receipt of those documents that Department of Education is to reimburse the parents for the transportation in an amount not to exceed the cost of bus service had the Department of Education provided that service to the child. If payments are made monthly the parents are to submit proof of each payment and the Department of Education is to reimburse the parents each month within 30 days in accordance with the guideline indicated above. Dated: January 13, 2012 Corrected Date: January 31, 2012 (Corrections Made to Exhibits)
2nd Corrected Date: February 14, 2012 (Corrections Made to Exhibits)]
______________________________
RONA FEINBERG, ESQ.
Impartial Hearing Officer
RF:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Demand for Due Process and Fax Confirmation, 6/30/11, l1 pp. B Finding of Facts and Decision by , Esq., 9/2/08, 9 pp. C Due Process Response, New York City Department of Education
By , 8/5/11, 5 pp. D Letter to the District from the Parent and Fax Confirmation, 6//23/11, 2 pp. E Letter to the District from the Parent and Fax Confirmation, 6/15/11, 2 pp. F FNR NYC DOE, 6/14/11, 1 p. G Special Education Service Delivery Report, M079 at P079, 2010-2011,
2009-2010, 2 pp. H Organizational Directory, M079 at P079, 10/2010, 3 pp. I Educational Progress Report, by , M.S.,
7/20/11, 7 pp. J Speech and Language Progress Report The
By: , M.S., CCC-SLP, TSSLD, 7/2011, 3 pp. K Progress Report The By: , M.S., OTR/L, , M.S., OTR/L, 6/2011, 7 pp. L ABBLS, The , 2011-2012, 3 pp. M Program Description and Graphs, , 2011-2012, 29 pp. N Information about the , 2011-2012, 1 p. O The Upper School Curriculum Format, 2011/2012, 3 pp. P Mission Statement, The , 2011-2012, 1 p. Q Classroom Schedule, The , 2011-2012, 1 p. R Team Meeting Summary, The , 2011/2012, 5 pp. S Curriculum Components/Overview, The , 6/2011, 14 pp. T Class Profile, The , 2011-2012, 1 p. U Attendance Record, The , 2011-2012, 1 p. V Discipline Policy and Disciplinary Code-The , Undated, 3 pp. W Staff List with Resumes and Certificates, The , Undated, 52 pp. X School Contract, The , 2011-2012, 3 pp. Y Affidavit, The , 2011-2012, 1 p. Z Omitted AA , University of The State of New York,
5/2011, 2 pp. BB , The University of the State of New York,
5/2011, 2 pp. CC T.E.A.C.C.H. Methodologies, New York City Department of Education, Undated, 3 pp. DD , New York City Department of Education, Undated, 3 pp. EE Paraprofessional Qualifications, Undated, 2 pp. FF Omitted GG Omitted HH Jose P., 7/28/98, 69 pp. II Standard Operating Manual, NYC DOE ,Undated, 305 pp. JJ The School’s Response to DOE subpoena, 2011-2012, 139 pp. KK Omitted LL Letter from Parent to the District, 6/28/11, 2 pp. MM School IEP By: , , ,
, , 10/7/11, 7 pp. NN District Referral Form, 6/2/11, 1 p. OO DOE Placement Related Form, Undated, 1 p.
DEPARTMENT OF EDUCATION
1 DOE Objections to Parents' Subpoenas, 8/4/11, 5 pp. 2 IEP, 5/17/11, 31 pp. 3 IEP Minutes, 5/17/11, 3 pp. 4 12-Month School Year Consent Form, 5/19/11, 1 p. 5 Notice to Parents, 9/29/10, 1 p. 6 Notice of Parents, 11/17/10, 1 p. 7 Third Notice to 3/1/11, Parents, 1 p. 8 Notice of IEP Meeting, 4/15/11, 1 p. 9 CSE Contact Sheet, 11/17/10, 1 p. 10 FNR, 6/14/11, 1 p. 11 Educational Progress Report, 12/17/10, 7 pp. 12 , 2010/2011, 2 pp. 13 Progress Report, 12/2010, 4 pp. 14 Progress Report, 12/1/10, 8 pp. 15 Classroom Observation, 5/13/11, 1 p. 16 2010/2011 IEP, 4/20/10, with CSE Notes, 34 pp. 17 DOE Amended Subpoena, to Parent with Proof of Mailing, 9/1/11, 3 pp. 18 DOE Subpoena to with Fax Confirmation Page, 9/8/11, 5 pp. 19 Letter from Parent to CSE, 5/1511, 1 p. 20 Demand for Due Process, 5/30/11, 9 pp. 21 Due Process Response, 7/7/11, 4 pp. 22 Tuition Invoice, 7/1/11, 1 p.
Footnotes
[2] In determining the LRE for the child the team considered how the child was functioning in the classroom with other children “at the moment.” Ms. “believe[d]” that the child’s teachers at agreed that the child needed a small class setting but she did not recall whether anyone from or the parents indicated that a setting was appropriate for the child ( : 299-300, 307).
[7] Although the school day ends at 4:45p.m., Ms. leaves at 3:15 p.m. to attend graduate school. However, there is a Master’s level teacher in the classroom until the end of the day and Ms. is there as well ( : 553- 554). Citations to pages 585-587 refer to Ms. ’s cross-examination of Ms. .
[10] The parents’ complaint that the Department of Education violated the “Jose P Consent Order” is without merit (Parents’ Post-Hearing Brief at 18-19; Parents’ Ex. A at ¶¶ 29-31). The federal district court has held in the child’s case for the 2008-2009 school year that the child is not a member of the Jose P. class because he was “timely evaluated and placed.” It also held that in any event, the fact that the FNR provided the name, phone number and address of a “placement officer whom [the parents] could have contacted to discuss the recommended placement or request another IEP meeting” satisfied the Jose P Consent Order’s requirements that parents be offered the opportunity to meet with a placement officer. R.E.and M.E.,785 F. Supp. at 44. In the child’s case for the current school year the determination must be the same. Even if the parents’ contention that the Department of Education has not evaluated the child is true, the Jose P Consent Order would not apply since the FNR sent to the parents in June 2011 also provided the name, address and phone number of a placement officer they could have contacted to discuss the recommended placement. See Id.
[11] Ms. who was not called by the Department of Education but was rather subpoenaed by the parents as a witness for two specific issues and she was not asked about transition on cross-examination.