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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: September 1, 2011
October 28, 2011
November 17, 2011
January 13, 2012
January 24, 2012
Actual Record Closed Date: February 29, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 1, 2011
Attorney, & Associates — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2011
Attorney — Student
Parents
Parents
Attorney — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2011
Attorney — Student
Attorney — Student
Mother — Student
Special Ed Teacher (via telephone) — Student
Attorney — DOE
Special Ed Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2012
Attorney — Student
Parents
(via telephone) — Student
Home (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012
Attorney — Student
Parents
DR., Director (via telephone) — Student
(via telephone) — Student
Attorney — DOE
On September 1, 2012, October 28, 2012, November 17, 2011, January 13, 2012, and January 24, 2012, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, 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 XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated June 30, 2011. (Ex. A)[1] I was appointed Impartial Hearing Officer on July 1, 2011. I was available to commence the hearing within 14 days of the end of resolution. At a telephone conference with the parties conducted on or about August 5, 2012, hearing dates commencing September 1, 2011, the first mutually available date for the parties, their witnesses and the hearing officer were scheduled. (T. 32)
An Interim Order on Pendency was issued on September 2, 2011, with no objection from the DOE, which directed DOE payment for tuition at The School (“ ”) in a month program and special education transportation to and from during the pendency of this matter. (Ex. I)
The initial compliance date in this matter was September 13, 2011. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. (T. 3, 193-194, 198-199, 405, 410-411, 724) 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. Documentation concerning my decisions was provided to the parties. (T. 200, 406, 724, Ex. II)
The current compliance date is March 14, 2012. The record closed on February 29, 2012, upon my receipt of all post-closing memoranda. Background and Positions of the Parties The student, almost years old at the time of the filing of this request, is as a student with . That classification is not in dispute. During the 2010-2012 she was a student at which she had attended for several years. (T. 666, Ex. C)
The CSE convened on April 29, 2011. The resulting IEP (“the IEP”) recommended a special class in a specialized school ( ) in a month program. Also recommended were a full time paraprofessional (“ ”), (“ ”) - minute sessions per week ( ), and (“ ”) – minute sessions per week ). (Ex. 1)
The IEP was mailed to the parents on June 8, 2011. (T.628, Ex. 1-2)
By letter dated June 15, 2011, to the CSE and , identified as the “Placement Officer” (“ ”), the parents stated that the IEP was not appropriate, that a school recommendation had not been made and that absent an appropriate program and placement the student would continue in for the 2011-2012 school year and reimbursement for that and for afterschool would be sought. (T. 634-635, Ex. M)
By letter dated June 14, 2011, the DOE offered a placement at (“the school”) in class . (Ex. 3)
The parents visited the school in June 2011 and by letter dated June 22, 2011, addressed to the CSE and stated that they believed the program offered was not appropriate and that the student would continue attendance at . (T. 636-637, Ex. L) The parents’ claim that no response to that letter was received was not contested by the DOE. (T. 646)
By letter dated June 30, 2011, the instant hearing was requested. (Ex. A)
The parents assert that the IEP is procedurally and substantively defective, that the placement offered is not appropriate and that the DOE has failed to establish that it provided a free appropriate public education (“FAPE”). Further, the parents claim that their unilaterally provided program, and afterschool services, is appropriate and that there are no equitable considerations that warrant denying or limiting reimbursement for those services. (Ex. III)
The DOE claims that the IEP and placement were reasonably calculated to enable the student to make appropriate educational gains, that the parents’ program was not appropriate and that equitable considerations support the DOE and warrant denial of reimbursement. (Ex. IV) [2] Cases Presented
A list of documents submitted by the parties is attached hereto.
The DOE presented the following witnesses: (“ ”), participant in the CSE review as school and District Representative who had also conducted a classroom observation of the student on December 14, 2010 (Exs. 1, 10); (“ ”), the teacher of the recommended class.
The parents presented the following witnesses: (“ ”), the student’s teacher for the 2010-2011 and 2011-2012 school years (T.330, 331); (“ ”), a who has provided services who has provided to the student (T. 423); (“ ”), the student’s home provider; Dr. (“ ”), the director of ’s School; (“ ”), a providing services to the student (T. 534); the student’s mother (“the parent”)
Findings of Fact and Conclusions of Law
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). In New York State, the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]
With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they testified truthfully in accordance with their recollections and as to the opinions they held. Transcript and exhibit references not specified below are included above. 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 procedure, s, 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 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]). 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 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 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.
When the CSE met in April 2011, the student was years months old. Her instructional levels in math and reading were at equivalent. The student was and used a modified form of (“ ”), and to her , and . She required to assistance to remain in a group but was described as having a “ like” disposition but with varying , and , and . impeded her ability to make . (Exs. C, D)
With regard to the CSE review and the IEP, the persuasive evidence in this matter shows that: Participants in the review included a school who also was the district representative, a DOE , a DOE special education teacher, a parent member, the student’s mother and various staff members including the student’s lead teacher, therapist and as well as the (T. 69-71, Ex. 1-2) The CSE reviewed various documents, all provided to each participant, including the prior year IEP, a and Progress Report, an ,a Educational Progress Report, a classroom observation prepared by the school who participated in the review, and ’s Behavior Support Plans. (T. 64, 73-76) All team members were present, in person, for the entire meeting
(T. 71) and had a full opportunity for input including in the development of goals which were all discussed and which would have been changed by the CSE if requested. (T. 110-111) testified that the team provided the para in view of the student’s needs for support, her history of and . (T. 87, 113-114) Goals addressed known and and and needs and included short-term objectives and all agreed as to their appropriateness (T. 105-109, 111, Ex. 1) Related service mandates took into account the fact that the student was and needed to her and her to and wants by the development of and and appropriate and approximations. (T. 79, 89, 91) Academic management needs were discussed, there was no objection to those specified by staff or the parent. Although an FBA was not conducted (T. 100), the CSE developed the BIP in reliance on reports, the student’s behaviors and the prior and current Behavior Support Plans were reviewed and discussed at the meeting. (T. 100-101) testified that an FBA had not been necessary. (T. 100-
101) She believed that the IEP and the placement with a full time para and related services was appropriate.
With regard to the placement offered, the evidence shows that in July 2011 the student would have been placed in a class with other students, all , with ages ranging from through . (T. 214) The students at that time ranged from to grade levels in both reading and math, with one at level in both areas and with whom this student would have been paired. (T. 214, 228) For those students there was a teacher, classroom paras and para. (T. 212) The student’s para would have provided another adult, resulting in students and adults. All the paras had more than degrees. (T.
306) The student’s mandated related services could have been provided in the school during the summer session. (T. 221, 302-303) Data was collected every day and used to guide instruction and assess behaviors. (T. 215-216) provided instruction with the degree affected by a student’s need for it which in this case appeared to her to be more than some others. (T. 304-305) The para for this student would provide additional support throughout the day and the student could work in a area to the extent necessary. (T. 306) Community trips were made at least weekly. (T. 225-226)
stated that this student’s goals were similar to those being worked on by others and she believed that she would have been able to fully implement the IEP including all goals and management needs. (T. 245-249, 241-243, 306) She has some knowledge of and testified that other school staff did as well. (T. 235) believed that it would not take her long to learn the that the student uses but how much would depend on how much information she received about what the student knew. (T. 235)
Her September class had classroom para and paras and they were not the same paras as those in her class in the summer. (T. 218, 307) She did not have the same class in September (T. 323) but testified that a decision could have been made to keep the student with her in view of the knowledge of the student’s and gained during the summer and any . (T. 322-323, 326) stated that the school related service providers would have remained the same. (T. 322-323) With regard to the issue of continuity, she stated that the para would remain the same in September. (T. 323-324) Teachers and , and other coaches meet routinely at the school to discuss the students’ issues. (T. 215-218) Teachers are observed by specialists who provide information concerning , strategies to address them and data collection. (T. 219-220)
The parents assert that the IEP developed by the CSE is procedurally and substantively defective and further claim that the DOE has failed to establish that it provided an appropriate placement. I conclude that the CSE was properly composed, that the CSE had adequate information concerning the student’s and and that the parents had a meaningful opportunity to participate. Such as may have occurred, as discussed below with regard to certain parents’ claims, I find did not alone or in the aggregate deprive the student of a FAPE. However, I find that the IEP was because it failed to adequately address the student’s . The placement offered, although otherwise sufficient is not appropriate because the DOE has failed to establish that staff would be able to appropriately with the student. [3]
The persuasive evidence shows that the student relies on an inventory of some modified to communicate. (T. 133, 332-333, 522) The modifications were student created as a consequence of her to make the correct in view of and other . Although she uses sometimes, they are not to those with them and usually accompany the . The student and is when and has sometimes . (T. 437,
624) testified that she would expect the student to if no one could recognize her . (T. 146-147) Before the student began , she relied on and her was because she could not make her and . (T. 632) I also note that her is , sometimes changes and is not to . (T. 146-147) Although having benefited from an opportunity to observe the student, view various materials concerning the and consult with knowledgeable staff, the evidence shows that it takes up to one to months to learn her . (T. 335, 535)
With regard to the school’s capacity to appropriately address this issue upon the student’s arrival, I note that although testified that she knew some and thought she would be able to pick up necessary to communicate with this student quickly, I note the testimony of the witnesses who knew the student and ’s lack of personal knowledge. With regard to the testimony that there were various staff members who knew , I find persuasive the testimony of the parent that she was informed by the Assistant Principal of the school that the only person who knew was a part time . (T. 641-642, 697-698) Reliance on or system would be in view of the student’s and to use them. (T. 581, 604, 622, 698) Further, in view of the persuasive testimony about the her , with the parent or teacher, discussed by , was not likely to be effective to enable communication with this student when she arrived. In the circumstances here some plan to incorporate the student’s modified language into the new placement was required. Indeed I note that testified that she assumed that crossover training of some sort by staff would have to occur (T. 169) but the CSE did nothing to ensure that would occur although the relationship of to was discussed (T. 630). In this connection I note that the IEP itself had “ ” omissions to the student’s reliance on modified that might have informed placement officials and the school (T. 139, 148, 158, 165, 167) and that the issue was not noted as special alert on the District Referral Form (T. 177178, 181, Ex. 6). A plan is not required merely because a student is moving from a private school to a new placement. See, A.L. and V.R. v. New York City Department of Education, 2011 U.S. Dist. LEXIS 85995. However, the CSE is required to develop an IEP which is reasonably calculated to enable a student to make meaningful education gains. In the circumstances here, I conclude that it did not.
Accordingly, I find that the DOE failures with regard to the student’s use of modified constitute a denial of a FAPE.
However, the parent have made numerous other claims alleging a failure to provide a FAPE in their hearing request, some reiterated in the parents’ closing memorandum. Although not necessary, in view of the foregoing findings, I address such claims as are not rejected by the findings above and that do not appear to have been abandoned. See, Application of a Child with a Disability, Appeal No. 08-037.
FBA/BIP issues: The parents claim that the DOE failed to develop an appropriate FBA and BIP and that therefore a FAPE was not provided. They assert that an FBA is required for a student whose behavior impedes his or her learning or that of others. (Ex. III-5) It is undisputed that an FBA was not prepared. (T. 100) However, the evidence shows, that the CSE received and considered information from reports including its behavioral plans, as well as the DOE’s own observation and information provided by the review participants which included the head teacher and other staff very familiar with the student and the parents. (T. 100-101) The CSE therefore had substantial information concerning the student’s , the reasons why she engages in such behavior and strategies the school was using to address that. (See T. 64, 101) The absence of an FBA does not require a conclusion that a FAPE was not provided when a properly developed IEP adequately addressed the student’s by providing interventions and supports to address those needs. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F. 3rd 165 (2nd Cir. 2009); Application of a Student with a Disability , Appeal No. 08-064 . testified that the entire team discussed the and I find persuasive the claim that the BIP was appropriately tailored to the student’s . (T. 101) The BIP the team developed specifies strategies and supports to help modify the and their effect on learning. (Ex. 1) It identifies the and provides strategies and techniques to address those based upon discussions by the entire team that included the areas of and effective strategies. (T. 97, 101) There has been no testimony from the parents’ witnesses it is incorrect and testified that she could implement it. (T. 249-252) Although the parent testified that it is not as complete as she would like, I conclude that it is sufficient to rebut the claim that a FAPE was not provided based upon the BIP prepared.
Related Service Mandate Fulfillment: persuasively testified that all related service mandates for the students in her summer class were fulfilled by DOE staff.
(T. 221, 301-303) No evidence was submitted by the DOE concerning the school’s ability to provide mandated services for this student during the balance of the school year. However, the Special Education Service Delivery Report (“SESDR”) submitted by the parents (Exs. KK) is not dispositive of the issue of whether a school is capable of providing services to a particular student at a particular time. See Application of a Student With a Disability, Appeal No. 10-060. See also, A.L. and V.R. v. New York City Department of Education, 2011 U.S. Dist. LEXIS 85995. Further, the DOE may issue related service authorizations in order to satisfy its obligation to provide the services. (Id.) The parents have cited no authority to the contrary.
Placement Process issues: The parents state claims in their complaint based upon the fact that the placement was not discussed at the review and/or not specified on the IEP. (Ex. 1) However, the lack of a CSE discussion or a school placement on the IEP does not constitute a denial of a FAPE. See T.Y. v. N.Y. City Bd. of Educ., 584 F.3d 412, 419-420 (2d Cir. 2009) With regard to that issue I note that here the DOE issued an FNR on June 14, 2011, prior to the commencement of the school year. (Ex. 3)
The parents also claim that the DOE must establish that its policies and procedures in selecting a school placement satisfy the “reasonably calculated” test. (Ex. III-8-9) It is undisputed that the parents were not included in the determination as to placement. Further, no evidence has been submitted as to how the placement was made and therefore there is no support a conclusion that the unique needs of this student were considered by the placement staff in making the recommendation. With regard to that I also note that the District placement form does not indicate the student’s reliance on modified or any unique communication difficulties and there is no basis for a conclusion that that was considered at all. (Ex. 6) However, I conclude that the appropriate inquiry is not into the DOE’s procedures but rather whether the school location it ultimately offered would have provided the student with an appropriate educational environment.
Further, claims based upon Jose P., asserted in the complaint, are not relevant here where the parents are seeking funding for a private placement after a timely review and a timely offer of placement which was rejected by the parents. See M.S. v. New York City Dep’t of Educ., 2010 U.S. Dist. LEXIS 87682. Accordingly, the DOE did not fail to provide a FAPE as a consequence of its placement procedure.
Parent Training and Counseling: The parents contend that the fact that the IEP did not specify parent training and counseling constitutes a denial of a FAPE. However, the evidence shows that parent training and counseling are programmatic in the program offered and that I am persuaded by the testimony of that the parents were informed at the review that parent training would have been provided. (T. 174-175) Further, testified that specific training is provided at the school by and providers, other parent training about which the parents are notified is provided at the school, she communicates with parents by e-mails and and invites parents to come in and a parent is available to visit homes. (T. 253-253) Accordingly, I conclude that the failure to specify the training/counseling on the IEP was not a denial of a FAPE. See, E.Z-L. v. N.Y. City Dep’t of Educ., 201 U.S. Dist. LEXIS 6335.
Necessity for to instruction: The parents assert that the recommended program provides inadequate to instruction in view of the student’s needs. testified from her review of the IEP that the student appeared to be unable to work independently in work stations. (T. 304-305) However, she stated that she provides to assistance in varying degrees dependent on need and that the student would have a one to one para for constant support and , if warranted, could work entirely in the areas of the classroom.
(T. 306-309) I find that the class supplemented by the to para provided a sufficiently intensive program for this student who, the evidence shows, can also sometimes function in a small group. (T.93)
Evidence concerning the 12 month program: The parents assert that the DOE was required to establish that it provided a FAPE for the 12 month school year, not simply the six week summer program, and that it has failed to do so. (Ex. III) I find that, as discussed below, the evidence shows that but for the language issue the placement was appropriate both for the month summer program and for the remainder of the school year. Accordingly, I do not address the DOE’s claim, for which I note no authority has been cited, that it is not required to present any evidence with regard to the month portion of the program once the parents have rejected it. (Ex. IV-13) I find, however, that the DOE was not required to present evidence concerning this student’s classroom configurations for that part of the program beginning in September with regard to staffing identity or student functioning levels and ages. I note that would be entirely speculative since placement had been and the September classroom determinations were therefore made with no expectation of her arrival. If the parents are asserting that that information is required, they would be requiring the DOE to “save a seat,” notwithstanding their claim that that is not the case.
With regard to the summer program, I conclude that the evidence shows that the student would have been appropriately grouped and that the classroom was adequately and appropriately staffed. Moreover, I conclude that a fair reading of ’s testimony, discussed above, demonstrates that the school provides differentiated instruction, data collection, supervision of and assistance to instructional staff and the utilization of management techniques specified in the IEP and parent training and counseling. Further, the strategies specified in the BIP can be implemented by staff. I also note with regard to continuity that although did not have the same class in September the student might well have been in her class and the related service providers and the para would have remained the same. (T. 322-324, 326) Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
In the instant matter the parents seek reimbursement for and also for up to 20 hours per week of out of school services.
placement: With regard to , I conclude that the evidence shows that it provides an education attuned to the student’s and and to meet her unique needs. The School has a Board Certified Behavior Analyst (“BCA”) qualified to consider the student’s behaviors and how to assess and address them (T. 558-559) and a plan was developed. (T. 435) All staff working with the student have access to the plan and are provided with instructions on how to implement it. (T. 436) All instructors receive instruction (T. 339) All staff working with the student are trained on the student’s working . (T. 333, 563) staff are familiar with the use of and devices should the student become able to use those systems. (T. 559-560) parent teacher meetings are provided and parent visits permitted. (T. 625, 711)
The student’s head teacher is qualified in special education (T. 333) and the director is in the classroom daily for observation and supervision. (T. 561) There are four or instructors in class and they each have at a . (T. 339) There are staff meetings at least weekly (T. 572-573) and additional training is provided. (T. 573-574) The student’s class has students and she is appropriately placed with regard to skills.
(T. 345-347) The main goal for this student is being able to move independently through the environment without much support. (T. 346) Her IEP includes goals to address academic and . (T. 340-341) Instructional staff is rotated routinely to promote generalization. (T. 388) Data is collected every day and analyzed at least once per week to determine progress and needs. (T. 567) Teachers work with the student on issues relating to menstruation, which has begun. (T. 341) The student goes out into the surrounding community at least once a day. (T. 336-337)
The provider records data each session and that data is reviewed by supervisors. (T. 438) The is supervised by staff. (T. 533) The student receives four minute sessions, delivered in the classroom, weekly by a provider appropriately licensed and certified who is familiar with her . (T. 420-421, 426-427, 428) The student also received sessions weekly, individual and group. (T. 540) Carryover from the sessions to the classroom includes , and and the student’s and goals affect her ability to . (T. 540, 547)
The evidence with regard progress is persuasive and shows that the student is making a degree of progress toward and . (T. 352, 605-606) She has also made progress with regard to and has made meaningful academic gains. (T. 352, 569) Progress has also been noted and detailed by her (T. 434) and by her (T. 543).
With regard to the DOE’s claim that the student is not making appropriate progress in academics, I note that the IEP stated that at the student had been moving toward more functional skills and more functional community goals in reading and math and testified that was what she needed to do. (T. 76-77, Ex. 1-3) The fact that the student is currently at does not establish that is not an appropriate placement. Similarly, this student’s of and despite longtime attendance does not support a conclusion that does not provide an appropriate program for her in view of her .
Accordingly, I conclude that the parents have met their burden to establish that is appropriate. tuition for the 2011-2012 school year is $125,000. (T. 648)
Out of School Services: The parents also seek funding for services from . The student is receiving home and community services from her and has been for about 11 ½ years. (T. 469) has a Masters degree in special education, training in and 14-15 years of experience as a home provider. (T. 498, 510) She provides parent training. (T. 478, 485) and works on including and . (T. 470-471) New issues addressed include and . (T. 471) She also involves the student in activities in the community such as going to the , using , going to the and and her . testified that she is working and , particularly the ability to , as well as on independence in tasks (T. 486-487) and that she follows techniques and programs. (T. 498, 510) She emails daily and has visited some times since July 2011 so that there will be consistency in the student’s program. (T. 472, 473-474) She is familiar with the student’s . (T. 479) She provides some hours per week with the number of hours having been increased in September 2011, after having been , due to developing . described progress since July including a in and , more independence with and related matters, an ability to request and participate in . (T. 493-494) She opined that if her services were discontinued there would be . (T. 482) Her fee is $ per hour which she stated was on the end in view of her experience and training. (T. 474)
I note that no objective documentary evidence has been submitted in this proceeding as to the value of the services provided and there is no indication that data is collected or reports written. (T. 486) Further most of the information she received concerning the student came from e-mails with personnel and that there were limited visits or scheduled conferences. Although stated that the home provider has “some share credit” for the student’s progress. (T. 576) he did not assert that the student could not make meaningful educational gains at if the home service was not provided. Moreover, I find that that is not the case. Although I am persuaded that the student receives some educational benefit from the home program, I conclude that the parents have not met their burden to establish that the out of school services in combination with were necessary for the student to make meaningful educational gains. The fact that the DOE failed to provide a FAPE does not impose on the DOE the obligation to maximize the benefits provided to the student. See, Application of a Child with a Disability, Appeal No. 10-123. Accordingly, the request for reimbursement for the out of school services is denied. Prong 3 The evidence shows that the parents cooperated with the CSE with regard to the development of the IEP, visited the school and timely communicated their objections to the program and the school. (T. 657-658) There is nothing in the record indicating that they were unreasonable in their interactions with the CSE. The parents’ preference for another placement, if that is the case, and/or entering into a contract with a school is not dispositive of a claim for reimbursement. Application of a Child with a Disability, Appeal No. 05-087. Further, I find credible the parent’s testimony that the tuition payments made were a loan which the parents are required to repay. (T. 648-650, Ex. Y) I find no basis for a denial or limitation of DOE funding because of equitable considerations in this matter.
ORDER
The DOE shall reimburse the parents $ for tuition at The School for the 2011-2012 school year (12 month program) upon submission of evidence of student attendance and payments made. Dated: March 12, 2012
_________________________________
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTS ENTERED INTO THE RECORD ON
PARENT
A Demand for Due Process and fax confirmation, 6/30/11, 11 pages B Findings of Fact and Decision by IHO , 7/21/10, 25 page C New York City DOE Individualized Education Program, 4/29/11, 22 pages D Individual Education Plan School, 2011/2012, 8 pages E Team Meeting Notes ( ), 8/16/11, 9/13/11, 10/4/11, 4 pages F School, Progress Report, August 2011, 5 pages G Data Graphs by School, July and August 2011, 4 pages H Letter from to CSE re: Resolution Meeting Notice, 7/22/11, 3 pages I , May 2010 & July 2011, 3 pages. J Progress Report by School, July 2011, 5 pages K IEP Goals School, July 2011, 3 pages L Letter from Parents to Placement Officer and CSE, 6/22/11, 3 pages M Letter from Parents to Placement Office and CSE, 6/15/11, 2 pages N New York City DOE Final Notice of Recommendation, 6/14/11, 1 page O School Enrollment Contract, 5/3/11, 3 pages P Letter from Parent to CSE 9, 4/7/11, 2 pages Q Educational Progress Report School, 1/25/11, 8 pages R Withdrawn S Withdrawn T Data Collection Sheet, September & October 2011, 13 pages U Data, Undated, 2 pages V Withdrawn W Daily Attendance Record School, 2011/2011, 1 page X Affidavit by The School, 9/16/11, 1 page Y Proof of Payment (Partial), 2011/2012, 4 pages Z Classroom Schedule, 2011/2012, 1 page AA NYS Ed. Dept.-Use of Timeout Rooms, May 2011, 2 pages. BB NYS Ed. Dept.- Methodology, 2/7/11, 3 pages CC NYS Ed. Dept.- Full Time Paraprofessional Teaching Qualif., undated, 2 pages DD Withdrawn EE Withdrawn FF Methodologies, 2/7/11, 3 pages GG Withdrawn HH NYS Ed. Dept.-FBA Assessment Materials, May 2011, 2 pgs. II Withdrawn JJ NYS Ed. Dept.-Behavior Intervention Plans, May 2011, 2 pages KK NYC DOE-Special Education Service Delivery Report, 5/20/11, 1 page LL Resume, Undated, 2 pages MM Data and Graphs by the School for Sept., Oct., & Nov., 3 pages NN Blank Data by the School, undated, 5 pages
DEPARTMENT OF EDUCATION
1 IEP, 4/29/11, 22 pages 2 IEP Meeting Minutes, 4/29/11, 3 pages 3 Final Notice of Recommendation, 6/14/11, 1 page 4 Notice of IEP Meeting, 4/14/11, 1 page 5 Notice of IEP Meeting, 4/4/11, 1 page 6 District Placement Office Referral Form, 4/29/11, 1 page 7 Progress Report, January 2011, 4 pages 8 Progress Report, January 2011, 7 pages 9 Educational Progress Report, 1/25/11, 8 pages 10 Classroom Observation, 12/14/10, 1 page 11 Plan, September 2010, 1 page
IMPARTIAL HEARING OFFICER
I Interim Order on Pendency, 9/2/2011, 5 pages II Documents concerning extensions, various dates, 5 pages III Parents Closing Memorandum. 9/24/2011, 31 pages IV DOE Closing Memorandum, 9/24/2011, 18 pages
Footnotes
[1] On September 1, 2011, the Impartial Hearing Request was amended to specify that the pendency claim was based upon the Decision and Order of , Esq., dated July 21, 2010, and the parties waived a resolution period after that amendment. (T. 3-4, Ex. C)
[2] The parents assert that the DOE is estopped from making various claims based upon alleged inadequacies in its Answer in this matter. (Ex. III-1) However, the Answer is not in evidence. Accordingly, I do not address the parents’ claim.
[3] The parents asserted claims specifically concerning signs in correspondence with the CSE (Ex. L) and in various paragraphs of the complaint. (Ex A-nos. 18, 31, 32, 59 and 67)