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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: September 2, 2011
January 10, 2012
February 6, 2012
February 17, 2012
March 6, 2012
Actual Record Closed Date: April 13, 2012
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2011
CSE Representative Department of
(via telephone) Education
Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2012
Dr CSE Representative Department of Education
Attorney Father School Psychologist Department of — Parents
(via telephone) Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2012
Dr. CSE Representative Department of Education
Attorney Father Principal Department of — Parents
(via telephone) Education
Occupational Therapist — Parents
(via telephone)
Speech Therapist Parents (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 17, 2012
Dr. CSE Representative Department of Education
Attorney Father — Parents
Educational Director — Parents
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2012
Dr. CSE Representative Department of Education
Attorney Father Mother — Parents
(via telephone)
INTRODUCTION
On September 2, 2011, January 10, 2012, February 6, 2012, February 17, 2012, and March 6, 2012 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 10:10 a.m., 10:00 a.m., 10:00 a.m., 9:35 a.m. and 9:30 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 her Individualized Education Program (“IEP”) as having “ ” is ”) for the 2011-2012 school year. In a letter dated July 15, 2011, the child’s parents, by their attorney , Esq., 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 12-month tuition at Stars as well as special education transportation.
The impartial hearing request is dated July 15, 2011 and I was assigned as the impartial hearing officer on July 18, 2011. The original compliance date was September 28, 2011. A pendency hearing was held on September 2, 1011. On September 13, 2011 both parties requested an extension of the compliance date for scheduling and preparation. The case was scheduled for a control date on November 22, 2011 and the compliance date was extended to November 27, 2011. On November 22, 2011 both parties requested an extension of the compliance date due to the availability of witnesses. The case was scheduled for a control date on December 15, 2011 and the compliance date was extended December 27, 2011. On December 20, 2011 both parties requested an extension of the compliance date due to the availability of witnesses. A hearing was scheduled for January 10, 2011 and the compliance date was extended to January 26, 2011. The hearing was held on January 10, 2012. On that date both parties requested an extension of the compliance date for the availability of witnesses. Hearing dates were scheduled for February 6, 2012 and February 15, 2012 and the compliance date was extended to February 25, 2012. On February 14, 2012 the hearing scheduled for February 15, 2012 was moved to February 17, 2012. At the hearing on that date both parties requested an extension of the compliance date for extensive testimony/issues. A final hearing date was scheduled for March 6, 2012 and the compliance date was extended to March 28, 2012. At the conclusion of the hearing the parties requested and extension of the compliance date for the receipt and review of the final transcript, to submit closing statements and for the issuance of the Decision and Order. The compliance date was extended to April 27, 2012.
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 Regulations.
THE PARENTS’ POSITION
, Esq., represented the parents at the hearing. Ms. alleged that for various reasons the District did not provide the child with a FAPE for the 2011-2012 school year, that Stars is an appropriate placement for the child and that the equities of the case support the parents.
THE DEPARTMENT OF EDUCATION’S POSITION
, Ph.D. represented the Department of Education at the hearing. Dr. asserted that the Department of Education provided the child with a FAPE for 2011-2012 school year, that Stars 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
has been a school psychologist for eleven years. She worked with special and general education students in a public elementary school and for the past five years has worked at the Region Committee on Special Education (“CSE”). She has a Master’s Degree in school psychology and state certification in school psychology and bilingual school psychology ( : 16-17, 29).[1] In her current position she performs psychoeducational evaluations, does classroom observations and participates in CSE meetings ( : 17).
Ms. participated in the child’s IEP annual review on April 11, 2011. To prepare for the meeting Ms. thought that she reviewed a December 15, 2010 Educational Progress Report by the child’s teacher, an observation by who observed the child during various activities, the report and the report as well as the child’s previous IEP and the “entire student’s file.” The child’s teacher participated in the meeting as did a supervisor from ; all of the goals were reviewed with the providers ( : 18-20, 26, 49-50; DOE Ex. 3). The child’s classification remained as “ ” and recommendation for the child continued to be a 12-month program in a special class in a specialized school. The child’s teacher and speech therapist provided the child’s instructional levels for the IEP (Simarova: 27, 31).[2] The academic goals “in general” were reviewed at the meeting as were the related service goals ( : 42-43). The related services providers provided the speech and occupational therapy goals and the goals were given to the parents as part of the IEP ( : 21). When asked to review “the first objective for social and leisure skills” page 6-9 of the IEP Ms. acknowledged that something seems to have been whited out both after the statement that the child “will engage in a simple game with others for 5 exchanges” and after the statement that the child “will play interactively with other students (gives a peer a toy when they request access) ( : 44-45; DOE Ex. 1.17). Ms. was not “sure” why the IEP appeared that way. She did not recall whether the CSE whited out any portion of the goals but she noted that the CSE informs the school and the parents if it sees “something on their pages that [the CSE] is not recommending that [the CSE] is not going to put in” ( : 45-46). When asked by Ms. whether page 6-4 of the IEP also appears to have white out applied for various goals Ms. replied that she did not recall and was “not sure” but “maybe” the CSE changed those goals from what was provided by Stars (Simarova: 46-47; DOE Ex. 1.12).
The child does not have a physical therapist so the physical therapy goals on page 6-10 of the IEP were probably based on previous goals in the child’s file and on information gleaned from the child’s therapist and his parents ( : 48-49, 61-62; DOE Ex. 1.18)
Ms. recalled that the team considered adding session in a group of two but that it was not added because the child’s therapist was “very against it.” The therapist believed that the child was “not ready yet for that kind of service” because it would be “too distracting for him” and he would not be able to “focus on his therapy sessions enough” ( : 32, 60).[3] After hearing from the therapist and reviewing the therapy goals the occupational therapy mandate was increased in light of the team’s determination that the child needed additional support because of his “significant difficulties with fine motor skills” and “sensory issues” ( 22). Ms. explained why she believed that the IEP could have met the child’s needs in the least restrictive environment (“LRE”) ( : 27-28).
observed the child for the Department of Education. The child was with a instructor the whole time that he was being observed by Ms. , even when he was participating in group work ( : 37; DOE Ex. 3). However, “based on a description of [the child’s] ” as well as information about his functioning the CSE determined that a class with a crisis management paraprofessional would be the least restrictive environment for the child ( : 37-38, 60-61). The crisis management paraprofessional would “work under teacher’s direction and supervision in the classroom individually with the child” and would “provide extra adult support” and help with the . The paraprofessional would also accompany the child within the school building ( : 40).
Ms. did not recall whether the child’s mother made any programming requests. However, she stated that “usually” if a parent has specific requests those request are indicated on page 8 of the IEP or on a “contact page” ( : 33). Ms. also did not recall whether the child’s mother agreed with the recommendation ( : 33-34). However, she noted that generally the therapists at do not agree with a recommendation because the school’s philosophy is instruction for every child who attends the school (Simarova:
34-35). In a public school building a classroom is the most restrictive environment available for a student with ( : 35-37).
The academic functioning levels of on page 3 of the child’s IEP indicate the “very beginning” “or below” ( : 53-54). Ms. noted that the child had a recommendation for but she was “not sure” whether the Department of Education had conducted an evaluation ( : 54-55). She also noted that the child had “
Ms. testified that the ”) was discussed at the meeting. She was “not sure” whether a ”) was conducted prior to the meeting because the was not “completely new” for the child ( 56-57). She did not recall whether the child’s mother asked about parent training and the IPE does not recommend parent training. Ms. explained that parent training is not a related service and that it is “programmatic” for District schools ( : 5759).
has a Master’s Degree in Special Education and has been in the field of special education for more than 30 years. She has a license for teaching students with mental retardation and emotional disabilities and has a New York City supervisory license for special education schools. For the past three years Ms. has been the principal of and she testified about her duties and responsibilities in that position ( : 83-84).
has classes primarily for students with or on the , classes for students with multiple disabilities and classes for students who receive Special Education Teacher Support Services (“SETSS”). There are two sites for the school, one at and the other at ( : 84-85, 94-95). is housed in a building with a general education “K through 5” school. The students in the classes share the gym, the hallways, the lunchroom and general assemblies with the general education students and they ride a bus with other students. The general education school participates in the Positive Behavior Interventions and Support (“PBIS”) program and all of the students exchange their tokens in the school store ( : 99-100, 124).
Ms. is at twice a month. The site has an assistant principal, Ms. , and Ms. described Ms. ’s duties and responsibilities in that position. Ms. previously worked “extensively with students with English as a second language in a range of different service ratios.” Neither Ms. nor any supervisor at has taught a class of students with ( : 100-102, 108).4 All of the teachers in the school are licensed and certified (SchwartzNyitray: 84-85, 100, 102-103, 108). The school has occupational therapists, physical therapists, speech and language teachers, a mobility therapist and hearing education and vision teachers ( : 88). Ms. stated that would have been able to meet all of the related service mandates on the child’s IEP both in the summer and in the fall of the 2011-2012 school year ( : 88-89, 109; DOE Ex. 1 at 24).
Several “coaches” come to the school; some are there once a week and others once or twice a month. Generally, the coaches have teaching licenses in special education and they each have areas of expertise based on their teaching history. One of the coaches, , is an “autism expert” with “years” of teaching classes; she is at the school about “once a month” ( : 103-105).
Ms. explained how the teachers are supervised and the professional development that is provided for them, which includes the topic of differential of instruction, which she described ( : 85-87). The teachers develop the student’s instructional programs with the help of the “ongoing teacher cohorts” and they use the UNIQUE curriculum, which is available on a website ( : 106-107).
If the child had attended the school for the 2011-2012 school year he would have had differentiated instruction since all of the teachers differentiate “as a matter of course” (Schwartz-Nyitray: 87-88, 127-128). Ms. did not review the child’s BIP and only reviewed the items on the IEP that Dr. provided to her prior to the hearing. Ms. explained why she believed would have been an appropriate placement for the child, including the fact that his learning profile is within the range of the learning profiles of the other students in the school; she based her opinion only on the documents Dr. Delpeche provided to her prior to the impartial hearing ( : 90, 110-113). ). She noted that greater than 95% of the students in the school also participate in alternate assessments, which she described (Schwartz-Nyitray: 89-90).
Citations to pages 101-127 refer to Ms. ’s cross-examination of the witness.
This year has four classes, two of which are age appropriate for the child, who “most likely” would have been placed in Ms. : 91, 93, 105).[5] The students in those classes use a range of devices, such as . Ms. did not know whether any of those students were using a ; nor did she know how many students were ( : 107-108, 116). She also did not know whether any of the speech therapists at are trained in PROMPT methodology ( : 108-109).
has a parent coordinator, , and a family worker; the parent coordinator goes to the 289 site once a week. At those times she meets with parents individually and may get involved with some classroom activities or conduct parent workshops ( : 119). There are weekly parent meetings which are “generally” held at the main site. Some of the meetings are informal and for others specific topics or workshops are scheduled. For example, the speech teachers will present a series of workshops that “will allow parents to understand what’s going on in for their students,” and they can create a communication device to take home and use with their children ( : 91-92, 95-96, 117118).
The FNR indicated the child’s placement at The child’s parents visited the school in June 2011 and met with Ms. : 93, 97). If the child had attended the school for the summer, in July he would have gone to the summer program at ( : 113-114). The summer school staff comes from . The child’s summer school teacher may not have been the same as the teacher he would be assigned to in September at the 289 site and the students in his class may also have been different ( : 97-99, 120, 123, 124-125). However, his would have remained the same ( : 125). The child would have received all of his related services during the summer. The , under the supervision of the child’s classroom teacher, would implement the child’s BIP, “maintain the data” and periodically review it with the teacher ( : 109-110). When a new student comes to the site all of the staff works with that student to make smooth transitions “from class to class” ( 121-122) The Parents’ Case is the child’s mother. She explained that when the child was about 15 months old she noticed that the child was not “hearing” or “understanding” her and she took him to the doctor and for an evaluation. He was diagnosed with , which is under the “ ,” and he needed , The parents took the child to two different neurologists and each confirmed the diagnosis ( : 325-328). At that time, before the child was , he began receiving special education services through . When he transitioned to the Committee on Education (“CPSE”) he also received services through the Department of Education, specifically, each week he received 30 hours of ”), five 45-minute sessions of , five 45-minute sessions of and two 30-minute sessions of physical therapy ( : 328-329). When the child first entered the CSE system the CSE said that a 6:1:1 class would not be appropriate for him and it deferred his placement to the Community Based Support Team (“CBST”) for placement in a non-public school ( : 333-334).
The child’s mother attended an IEP meeting for the child on April 11, 2011. At that time she asked for programming for the child with a “certified licensed teacher” and to continue the related services he was receiving - - five 45-minute sessions of speech therapy, five 45-minute sessions of herapy and two 30-minute sessions of physical therapy ( : 330-331). The Department of Education participants at the meeting said that they did not have any site that offers staffing and that the class offered on page 1 of the IEP would have six students with one certified teacher and one paraprofessional. They did not explain how such a class could meet the child’s needs or why that placement was now appropriate for the child when it had not been appropriate for the prior year ( : 330334). The CSE told her that because the child has “ ” the crisis management paraprofessional would be “an extra body in the classroom for him” but they did not go into detail about what the paraprofessional “would actually do.” Ms. did not feel that the placement was appropriate for the child but she was told that there was “no such thing” as staffing ( : 332). Ms. did not recall that the goals and objectives on the IEP were discussed at the IEP meeting or that parent training was discussed at that time ( : 334). No one from the Department of Education has ever offered her parent training for the child ( : 344).
In a letter dated May 19, 2011sent to Ms. and Ms. at the CSE the child’s father, , agreed to the Notice of “Recommended Deferred Placement: Annual Review or Revaluation” that was sent to the parents. He also indicated that the parents would like to visit the recommended placement “or a sample of this type of program” while school is in session” (C. Fasten: 335; Parents’ Ex. G). The parents received the Final Notice of Recommendation Annual Review and Re-evaluation (“FNR”) dated June 4, 2011 “a couple of days before the 10-day deadline that [she] was supposed to contact” the CSE
(C. Fasten: 335-336; Parents’ Ex. F). On June 13, 2011 the child’s mother wrote a letter to Ms. Potash at Region 6 stating that the parents set up an appointment to visit the school on June 22, 2011 and thus would not be able to respond by the date on the FNR (C. Fasten: 336; Parents’ Ex. E).
On June 22, 2011 the child’s mother and his teacher, , visited , the school on the FNR ( : 336-337, 341, 346).6 They stayed for about two hours and met with Ms. , the teacher of the class proposed for the child as well as the unit coordinator, the therapist and the therapist; they also met with Ms. , a parent coordinator at the school; no one specified whether she was the parent coordinator for the general or special education program (C. Fasten: 337-338). Ms. and Ms. asked questions about Ms. class and observed that the students in that class were “ ” ( : 338-339, 351). In particular, on student was “doing a math sheet independently,” adding columns of three-digit numbers and the others were also working independently on different levels of math work. Four of the students were verbal, two used devices other than a . The majority of the students were and the students did not appear to have similar to those of the child; there appeared to be a “big discrepancy” between the materials those students were working on and what the child “could do” at the time of the hearing ( : 338-339, 347, 351-352). No one said anything about another class or about teachers named Ms. or a person named ( : 338, 340).
In the lunchroom there were both special education and general education students. Ms. class sat at its own table and the lunchroom was noisy, with children “walking around, talking and playing ( : 346-347). The child’s mother
Citations to pages 346-349 refer to Dr. ’s cross-examination of the witness. believed that the lunchroom would be “ ” for the child; she stated that he would “cover his ,” would ( : 350). The students in Ms. class did not show that kind of behavior; they were “ : 351). Both Ms. believed that the proposed placement was not appropriate for the child; Ms. believed that the child needs to be with peers that are on his level (C. Fasten: 341).
On June 22, 2011 Ms. wrote another letter to Ms. at Region explaining why she did not believe that the proposed placement was appropriate for the child ( : 340-341; Parents’ Ex. D). She asked that they send the parents “information on any other programs or placements that may be appropriate” for the child but the parents never received any other placement recommendations. Both parents testified that they would have considered another school program had an appropriate program been offered (C. : 342; M. 355).
During the current school year the child has a communication book in which the teachers enter information “almost daily.” The school has an “open door policy” and Ms. can come “whenever [she] need[s] to come.” She has observed the child in at the school so that she can “try to incorporate some of the skills at home” and so that she knows “what level he’s up to and what particular goals they’re working on” with the child ( : 343). The staff has given her “different tools” to work on with the child, such as word lists to hang up. The staff also answers any questions she may have and helps her have the child interact with his siblings at home ( : 344).
Prior to the beginning of the 2011-2012 school year the child’s greatest relative strengths were in fine motor skills, such as puzzles and the ability to “cut a little bit with scissors” ( : 329). His greatest challenges were in communication, specifically, spontaneous communication ( : 329). Currently, the child communicates in school with a but he has not mastered it sufficiently to bring it home. At home, the child “basically” gestures, points and “brings the item he desires.” With “prompting eh can say the word but it doesn’t come spontaneously ( : 330; : 358). Since the summer of 2011 the child’s receptive language has increased in that he “understands more.” His expressive language has also increased in that he “can label more objects” and is “generally more aware of his environment” ( : 344-345, 349-350). The child has also “become a little more social at home” in that he will “give his sister a hug here and there.” Ms. observed that the child is “emerging a bit more out of his shell” ( : 345). Mr. testified that the child‘s fine motor skills such as “eating and things like that has been greatly improved” and the child “definitely understands more language” although the “is really not there.” Toilet training “is still a work in progress” ( : 356).
This is the child’s third year at ( : 357).[7] The child’s mother believes that the child is appropriately placed in because the school “addresses his needs.” In particular, “there is a teacher with him at all times to help his instruction” and with group activities if needed ( : 345). The child’s father also believes that is appropriate for the child because he needs the basis that provides. He has seen the child at the school and noted that the child “works well” within the environment even with other students in the classroom and that the child “really responds well” in the school ( : 357).
has a Master’s Degree in special education and advanced certification in Administration and Supervision. Ms. also has completed the course work for a BCBA (“Board Certified Behavioral Analyst”) and will be taking the exam for that certification in May. She is currently the Educational Director of and she described her duties and responsibilities in that position ( : 229-231).[8]
is a school for children diagnosed with that uses to guide its teaching. The school also incorporates “ ” as part of its curriculum and it incorporates various disciplines of therapy throughout the school day and with each student ( : 232). In order to remain in the school a student must show that he or she still meets the needs of a environment and show on an assessment that he or she still has progress to be made and is not up to any level to be generalized or transitioned out of the school ( :233).
During the “end-of-summer” break prior to Labor Day the teachers participate in a week of “very intensive” training based upon their skill levels and “also working specifically” with the children they will be serving. There are also scheduled staff training dates during the school year, half hour team meetings each day and two hour meetings on Friday afternoons ( : 235-236). There are also times that each teacher has either a “co-teach” with another teacher or a therapist ( : 235-236).
The school day is from 8:30 a.m. to 3:00 p.m. on Monday through Thursday and from 8:30 a.m. to 1:30 p.m. Friday ( : 235). For the 2011-2012 school year there are 19 students enrolled at Stars in four classrooms ( : 237-238). The child’s class has four students, a lead teacher, three other teachers and a : 262-263). The school has an occupational therapy department with that push into the classroom or take children out into the community or the sensory gym ( : 234). Ms. described the physical layout of the school, which includes areas where the children can generalize skills and work with students from other classrooms ( 238-240). The students go out into the community for visits that relate to the “theme of the month” or to practice particular skills. For example, they might visit the aquarium, a store, a playground ( : 240-241).
Ms. knows the child since he began attending in 2009 ( : 241-242, 309). She currently supervises his lead teacher, writes his curriculum, updates his programs and graphs his data. She has been in the child’s classroom to work with him on discrete trials and has also seen him in group time and working on his Activities of Daily Living (“ADL”) skills. Ms. has also seen the child working with both the speech and occupational therapists ( : 242). She identified the child’s greatest difficulties as the behaviors that interfere with his learning, in particular, the “very fast pace” of his “impulsivity to get out of the chair [and] to move around a lot” so that he is unable to “stay seated and focused on a task.” The child also has tantrums and “some aggressions of hitting” (Wasserman: 243). She stated that while he child’s impulsivity had “definitely improved” since last year with his sensory diet, that ( : 246).
Ms. identified the child’s greatest strengths as in “emerging with expressive requesting and language.” She noted that he has made “great strides” in this area in the past few months in that where previously he was only able to “acquire minimal kinds of labels to request items that he would desire,” his “repertoire has now expanded considerably” as well as his ability to use the labels expressively more reliably than his (Wasserman: 243-244). He is also using “a lot more spontaneous to basically ask for something he wants, both items that are “present, items that are not present and requesting actions like to run, to jump.” However, the child still : 244).
Ms. explained how the child’s teachers and therapists address the adverse behaviors throughout the school day, noting that they are all trained with the child’s . She also explained that the occupational therapist has training in ”sensory integration” and has developed a “very structured” and “very involved” for the child which has helped with ( : 245-24).
She testified that the child has an “ ” and she stated that he has made “steady progress” ( : 248). Ms. reviewed and explained the results and meaning on the grid for the Assessment of Basic Language and Learning Skills (“ABLLS”) Revised Skill Tracking System for June 2, 2010, July 22, 2010 and May 23, 2011 and indicated that the information on that grid” absolutely correlate[s]” to the information on the Complete Items Report and the Incomplete Items Report, which she also explained ( 249- 258; Parents’ Exs. S, T, U). Ms. testified that the child’s Stars IEP was developed based on the ABLLS assessment, the child’s needs, and input from both the parents and the child’s therapists. Each goal on the IEP is developed into a program that is “broken down into small steps,” each of which is taught in “discrete kind of components” ( : 259). The child’s performance relative to his program is either graphed by “cold probe data” or “trial-by-trial data,” both of which she explained ( 260-261). Data is collected “all day every day and graphed and analyzed daily.” Ms. explained what the data would have to show in order to determine whether the child has “mastered” a skill and how, when a skill is mastered, the school ensures that the child will retain and generalize it ( 261-262). She reviewed the IEP and described the goals in which the child has made progress since July 2011 ( : 271-281; Parents’ Ex. K).
For the 2011-2012 school year the child is in class 106 with three other children (Wasserman: 262, 301; Parents’ Ex. I). 9 The students in the class range in age from about six years five months to two months older than the child ( : 303). The child was placed in that class because it has the appropriate age range and the other students in the class have similar to those of the child, namely, .” The students are all “emerging
Citations to pages 301-319 refer to Dr. Delpeche’s cross-examination of the witness. with their , have either moderate or or ” ( : 262-263). While the classes are ungraded the functioning of the students in the child’s class in “below a pre-K level” ( 263, 303).
The lead teacher in the child’s class is . She has been at since 2005 and has extensive experience .working with children who have The other teachers . was in the class until December and she has been replaced by . Prior to working at all of the teachers worked with children who have . Two of the teachers have Master’s Degrees and the other two are in a Master’s Degree program. is the pathologist that is in the classroom all day ( : 263-265). Ms. observes the teachers working with the child almost on a daily basis and she opined that they “definitely have very good skills and help to teach him every day” ( : 265-266). In order to promote generalization the child works with several of the teachers each day as well as with Ms. and the ( : 266-267).
The child is not able to work independently; while the staff “strive[s] for more independence levels,” the child “still requires a lot of teaching” and he needs, and has, instruction all day long. Ms. explained how the staff works on skills to promote independence for the child, for example in ADL skills; she stated that he cannot become independent without being taught “each and every skill on a one-to-one level.” She noted that his toileting is “pretty independent” although it is on a schedule and that “washing his hands” is “pretty independent” although he requires prompts; he can also eat by himself with a fork and, with reinforcement, he can and put away his lunch ( : 267-268, 310-312). The child has the opportunity to interact with his peers and work on social skills during various activities, such as an exercise group in the morning or doing a “turn taking” activity while also with his to control his and provide prompting when needed (Wasserman: 268-270). Although the child has his instructor in a group setting he cannot learn a “skill” in that environment. Rather, in a group setting he learns to generalize a skill that he has already acquired ( : 270-271). During the current school year the child has had the opportunity to interact with older students from schools in the community who have come in to do an art activity or a game with child’s class based on the themes of the month ( : 302-303; : 175, 187-188).
The school provides parent training throughout the year both directly related to what is being implemented for the child both by the teachers and the therapists and as a group on specific topics (Wasserman: 236-237). The child’s parents have attended training sessions (Wasserman: 282). During the summer the child’s mother came to school once a week and worked with a staff member on strategies the child could generalize at home. She also comes in for meetings and to see the child work with the teacher or the ( : 281-282).
Ms. opined that “overall” the child has made “slow” but “steady” progress since July 2011 ( : 282). She believed that is appropriate for the child. Ms. testified that the child currently demonstrates the need for a student to teacher ratio and shows that he learns with the use of ABA and discrete trials. And, the data shows that the child is improving in various areas and thus that the school uses an educational strategy that is working for him ( : 283-284).
Ms. has seen “about five” District classes this year and during each of the years she has been at ( : 287, 307). She did not believe that such a program is appropriate for the child because it is not a student to teacher ratio and the child cannot lean in a group of that size ( 287-289).[10] There have been times that children have been transitioned to less restrictive settings when appropriate, include public school programs, general education or a : 318-319).
Prior to the child’s IEP meeting provided the Department of Education with Progress Notes and they also filled out the and physical pages of the IEP and provided the short-term and long-term goals. She stated that the Department of Education then deleted some of the information that Stars sent them ( : 289-290, 09). Ms. reviewed the IEP at the hearing. She testified that did not provide the “Academic Performance and Learning Characteristics” page of the IEP, and noted that under the “present level” the IEP did not include the fact that the child had a teacher which “is how he has learned the skills.” She also noted that the page indicated “PECS” when the child had already started with the DynaVox (Wasserman: 290-291; Parents’ Ex. C at 3). Ms. Wasserman did not agree with the social/emotional management needs indicating a crisis management paraprofessional and highly structured environment. She explained that the child needs a small environment, a teacher with a background in ABA and a teacher that can apply the BIP systematically (Wasserman: 291-292; Parents’ Ex. C at 4).
Ms. also opined that the goals on page 6-1 (Parents’ Ex. C at 5) of the IEP are not appropriate for the child because he does not have a “really sound foundation” for building receptive language. Specifically, she explained that the child does not understand “functionally even the parts of his body and what they do and actions and receptive idea of objects and their function.” Therefore, the goals and short-term objectives related to learning colors or shapes or letters of the alphabet or consonants and sound “have no function for him right now” since he does not understand that “objects have words,” meaning or labels. She elaborated on why she believed those goals on the IEP are “definitely” not appropriate for the child at this time ( : 292-294; Parents’ Ex. C at 9). She also testified that the goals on page 6-2 (Parents’ Ex. C at 10) are not appropriate for the child because she did not believe that a should be the one working on those goals because those are “not fully trained.” She also noted that the child did have to work on “some of the things” on that page but that those goals needed to be broken down into short term objectives so the child can learn them in components ( : 295-296; Parents’ Ex. C at 10).
Ms. testified that did provide some of the pre-academic skills goals on page 6-4 (Parents’ Ex. C at 12) but she observed that “a lot of it has been whited out of our full goals.” She opined that “criteria has been whited out” as well as “the level of a ” noting that the staff “felt that these skills need to be taught on a one-to-one.” Ms. testified that the school’s short term objectives would include those things for an IEP and that they were “definitely taken out” ( 296). Similarly on page 6-9 which addresses ABA instructional goals, “environment and criteria” have been whited out ( : 298-299; Parents’ Ex. C at 17). Stars did not provide the BIP at the back of the IEP. Ms noted that the “touches on some” of the that interfere with the child’s learning but she opined that it was “a bit vague” and explained why it does not address the “ ” or what the intervention should be ( : 300-301; Parents’ Ex. C at 25).
has a Master’s Degree in and she has taken continuing education courses in “multiple areas” including vision therapy, sensory integration, handwriting skills and gross motor vestibular training. She has been the supervisor of occupational therapy at Stars since 2008; she does not have a degree in special education ( : 132-134, 174).11 Prior to working Ms. worked at a school with children on the and . She also does “some home care” and she worked with children who had varied abilities (Nakar: 134).
Ms. described as a school for children on the . The school is a “very individualized” program in which each child has daily individual behavioral therapy, occupational therapy and speech therapy. There are four occupational therapists at the school, including Ms. . In her position as supervisor, Ms. conducts individual sessions
Citations to pages 174-187 refer to Dr. ’s cross-examination of the witness. with the students, co-treats students with the other therapists and other staff members, conducts team meetings with the staff and does training with the teachers, which she described ( : 135-136, 175). The staff also receives training from professionals in other disciplines which the staff is required to attend and they must “really learn” about what every discipline covers and how they overlap ( : 136-137).[12] The school takes a “holistic” approach to teaching and she explained why interdisciplinary instruction and therapy benefit the students at the school ( : 137).
The students receive in a sensory gym that has suspended equipment as well as “various gross motor equipment” and “fine motor manipulatives” as well as space for “tabletop” and a small room for “quieter space” if necessary. The hallway and back yard are used for work on leisure activities such as bike riding and roller blading (Nakar: 137138).
Ms. knows the child since he began at When he first arrived the child was a “very, very slow learner.” He was “perseverative, very repetitive, very rigid and inflexible.” The child was also “very disorganized” and anxious. Ms. gave specific examples of these behaviors ( : 138, 140-143). For the 2011-2012 school year the child is in a class with three other students and four instructors. He receives individual occupational therapy every day for 45 minutes. Ms. provides the child with two of those sessions a week and also does co-treatments with, and supervises, the child’s other therapist, , a licensed occupational therapist who has a Master’s Degree in occupational therapy. Ms. also participates in the child’s evaluation and progress reports by which she measures whether the child is making progress with Ms. ( 138-139, 159, 175-180, 184, 187). She collaborates with Ms. weekly and sometimes daily. Ms. understands the child and works “very well” with him (Nakar: 139-140). Ms. explained how she and Ms. are addressing the child’s “sensory disorganization” during the current school year, including a sensory diet and working with the child’s teacher to address his needs ( 143145; Parents’ Ex. AA). Ms. reviewed the sensory diet at the hearing, explained what deficits it targets and how it benefits the child and how it fits into the school day. She also explained the use and benefits of additional sensory input such as a and “therapeutic listening” ( : 146-152, 172-174; Parents’ Ex. AA). Every day the child attends a 15-minute exercise group which is also 1:1 (Nakar: 146, 159).
Ms. testified that the is “very important” for the child. She noted that the child “ and that “ ( : 152). Based on the evaluation of the child dated June 17, 2011 and on her work with the child during the 2010-2011 school year, Ms. identified the child’s particular strengths and weaknesses in the area of occupational therapy and in which areas he has shown improvement since the beginning of the current school year (Nakar: 152-156; Parents’ Ex. Q).
The child also has social-emotional difficulties and Ms. explained how the program is working to remediate those deficits ( : 189-191).
At the beginning of the 2011-2012 school years the child would often “go from .” The laughing was “good” because they did not know what “ ” and they would “have to work through it,” which took away from his ability to learn. Ms. explained that the child needs a “lot of structure” because without it he “does the roaming and the rocking and shaking.” However, “when he’s given the structure and the pictures, he does a lot better.” The child also has a “lot of difficulty” with new situations and new activities. “Oftentimes” the staff has to accompany the child on doctor’s visits and if additional students come into the classroom or the noise is increased he may be “set off” and get “really upset.” The child’s disorganization is also reflected in the fact that an activity is “okay” one day but the next day can get “very upset” by the same activity ( : 156-157). The staff always has pictures available so that the child can indicate what he wants ( 157-158). Ms. noted that in the past the child would almost “ ” when someone tried to “ . However, he now ‘really likes it and enjoys the tickles” and “asks for more” ( 158). All of the disciplines have to follow the which “basically guides [them] how to react, how to respond, what to expect” of the child when he is in a “difficult situation” ( : 182-183). The child’s picture schedule also helps by keeping him organized and it helps “calm him down as well” ( : 183).
Ms. explained how the occupational therapy goals for the child are developed, noting that they are based in part on his evaluations and on goals for the prior year that have not been mastered. She also explained how she and Ms. track the child’s performance to mark his progress with respect to each goal and how they ensure that the child retains the skills that he has mastered ( : 160-163; Parents’ Ex. Y). Ms. reviewed the progress markings on the December 12, 2011 report and indicated the areas in which the child has progressed since that time, noting that the “problem” with some of the areas is “inconsistency” (Nakar: 163-166; Parents’ Ex. Y). Ms. also addressed the Progress Report dated December 22, 2011 that she prepared with Ms. : 166-167; Parents’ Ex. Z). She described the child’s performance in occupational therapy since the beginning of the current school year noting that he “really does enjoy the therapy.” She explained that the child “responds very well to the reinforcement of the activity itself “ and that through the use of a “picture schedule” the therapists can address his needs and give him the choice of gym activities for reinforcement. The child now “enjoys activities a little more” than he did “before,” which Ms. attributed to a ” so that he is “more comfortable” and trusting ( : 167-168). She noted that the child has gotten a “lot better with ball play” and that he gotten further with puzzles “better” with visual perceptual tasks However, the child still has a “really hard time” with visual motor tasks ( 168). Although the child’s attention has, “in general” gotten better, at times the child engages in “ behaviors” such as flapping his hand or screaming, which do interfere with his ability to “attend ( 168).
The child has been able to focus at tabletop activities for an increase period of time and he is also “tolerating tactile input”; she explained why this tolerance is “so important” to the child’s learning ( 168-169).
Ms. participated by telephone in the April 11, 2011 IEP meeting for the child, along with who also work at : 169-170). She thought that she recalled a class in a District school being “mentioned” at the meeting; she testified that she did not agree with the placement recommendation and that she still does not agree with that recommendation. Ms. testified that at the meeting she expressed her opinion that the placement would not be appropriate because the child “requires a lot more and he would not be able to learn in that kind of environment.” While she did not recall the “exact words they said” Ms. testified that Ms. and Ms were in agreement amongst themselves about the propriety of a setting ( : 171-172). She did not recall whether the goals and objectives on the IEP or the BIP were discussed at the meeting ( : 172).
While Ms. has never observed a student in a class in a New York City Department of Education program she knows that the child needs to have an individual teacher with a degree who will be able to guide and teach him on an individual basis throughout the day. She also knows that the child does not function well with a lot of people and a lot of change and diversity. She noted that the child “cannot be in a group of two” with only one instructor and that he does “not do well at all when he doesn’t have that direct guidance” in a “well-tailored and confined environment” (Nakar: 185-187).
has a Master’s Degree in Communication Disorders, is trained in PROMPT methodology and has certification from the American Speech/Hearing and Language Association. At the time of the hearing she was being supervised in her nine month Clinical Fellowship and she will receive her Clinical Competence Certificate in April 2012 (Rice: 193-195). Ms. elaborated on her training and her work with special education students, including work with the Department of Education in District schools ( : 195-196).
Ms. is the child’s pathologist for the 2011-2012 school year and has been working with him since June 2011 (Rice: 196, 212).13 Prior to working with the child Ms. completed two weeks of training during which she observed both the child’s therapists and his former speech therapist working with him ( 196-197). Ms meets with the child individually in the classroom five times a week for 60 minutes. She explained that the benefit of working with the child in his classroom is that she can work with him at different times throughout the day “in various contexts to help generalize his skills” ( : 198-199). The sessions are 60 minutes in order to deal with “all areas of ” which she specified, as well as his behaviors, which include , flopping to the floor and hand slapping” ( : 197-198, 204). She explained that she addresses these behaviors by following the child’s Behavior Plan. While she has seen “slow and steady gains” in his behavior with the implementation of the Behavior Plan, she noted that those behaviors are “still pervasive in his sessions” ( : 198, 203). One of the child’s goals is to “focus and attend to language for a period of three to five minutes” and Ms. targets the lessons in those increments with “ reinforcement breaks” based upon his behavior in each
Citations to pages 211-213 refer to Dr. ’s cross-examination of the witness. session; Ms. also follows the child’s sensory diet which allows for “movement breaks” (Rice: 211-212). Ms. testified that the child’s greatest strengths are in receptive language and his greatest challenges are in expressive language and articulation ( 202203). He has about 25 “approximations” that a familiar listener could identify ( 203).
The child communicates primarily with a , which Ms. described ( : 199-200). Ms. inputs the icons on the device for the child each day. She described what the device looks like, how the child uses it and why it “enhances” his vocal output (Rice: 200-201). Ms. testified that the staff is trying to generalize the to all settings but as of yet the child has not shown the prerequisite skills for that generalization, which includes the ability to safely carry it from place to place ( : 201-202). At home, the child has a “communication wallet,” which has the same icons that are in the but does not have “voice output” (Rice: 202). Ms. also defined PROMPT and explained the importance of PROMPT in the child’s therapy. In particular, she testified that PROMPT is “imperative to [the child’s] communication (Rice: 194, 201).
Ms. communicates with the other members of the child’s team at Stars once a week at formal meetings and informally every day ( : 197-198). She sends weekly notes to the child’s parents and speaks to them both informally if they stop by the school and at parent/teacher conferences (Rice: 202).
The progress report and goals is dated December 1, 2011 and those goals are still in place for the child. Ms. explained how the she ensures that the goals the child has mastered are retained ( : 205). And, she reviewed that progress report the objectives in which the child has made additional progress ( : 205-208; Parents’ Ex. N). She also She testified that for , each with his own support, to facilitate peer interactions; the child could not participate in such a group without support ( 208). Ms. will complete a full scale evaluation of the child in June 2012, the purpose of which will be “for progress and creating goals” (Rice: 212-213; Parents’ Ex. N).
Ms. testified that the child is in the areas of that are most meaningful for him and and his behaviors that need “intensive services” ( : 210).
The Enrollment Contract (“Contract”) for is from July 1, 2011 to June 30, 2012. The tuition covers all of the child’s related services and the parent training. Mr. testified that he signed the Contract on September 12, 2011 because that is when the school asked him to sign it ( : 353, 359; 284; Parents’ Ex. W). Mr. explained that there is a credit of $14,833.00 on the Contract due to an overpayment for the prior school year 354; : 285). The secretary of the Board advised the parents that if the child attended public school for the 2011-2012 school year the credit for the prior overpayment would be refunded to the parents ( : 354-355; see : 286). As of the date of the hearing the parents have paid the 2011-2012 tuition in full (M. Fasten: 355).
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 unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. The Decision 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 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 IEP must include the child’s present levels of academic achievement and functional performance. 8 NYCRR 200.4[d][2][i]. The IEP must also include measurable annual goals that include “evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with the placement and ending with the next scheduled review by the committee.” 8 NYCRR 200.4[d][2][iii][b].
In developing an 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.
The parents allege in both the Due Process Complaint and their Post-Hearing Memorandum that, for numerous of reasons, the Department of Education failed to meet its burden under Prong I because the IEP and the recommended placement were inappropriate.
A. The parents assert that the IEP was inappropriate in that Department of Education failed to develop appropriate and sufficient goals and objectives for the child (Parents’ Ex. A at 3-5; Parents’ Ex. EE at 8-9). A review of the evidence and testimony supports their claim.
To begin, while the parents’ witnesses testified that provided some of the goals on the IEP, Ms. Wasserman, the executive director of , testified that many of the other goals on the IEP were not appropriate for the child. Specifically, Ms. who works with the child and knows him since he started at the school in 2009, reviewed the annual goals and short-term objectives on page 6-1 (Parent’s Ex. C at 9) of the IEP and explained in detail why they are “definitely” not appropriate for the child at this time ( : 293-294). She also explained why a number of the goals on pages 6-2 and 6-3 (Parents’ Ex. C at 10-
11) of the IEP are inappropriate, in particular testifying that the goals need to be “broken down into components” in order for the child to benefit and opining that a crisis management paraprofessional is not sufficiently trained to teach the child the skills that he does need to work on ( : 295).
With respect to the goals that were provided by Ms. testified that several of the pages of the IEP that had goals submitted by the school had been altered to remove any reference to “one-to-one” instruction. Specifically, Ms. stated that on page 6-4 of the IEP addressing pre-academic skills, “a lot of” what provided for the IEP was “whited out of our full goals.” In particular, she testified that “criteria has been whited out” as well as “the level of a ,” noting that the staff “felt that these skills need to be taught on a one-to-one.” Ms. Wasserman testified that the short term objectives provided by Stars would have included those things for an IEP and that they were “definitely taken out” (Wasserman: 296; DOE Ex. 1.12; Parents’ Ex. C at 12). Similarly, Ms. stated that on page 6-9 of the IEP which addresses instructional goals, the “environment and criteria” that were provided by Stars was whited out (Wasserman: 298-299; Parents’ Ex. C at 17). When Ms. , the CSE member who testified at the impartial hearing, was asked about these deletions from the goals provided by , she acknowledged that the pages appeared to have things whited out but stated that she did not “recall” whether the CSE whited out the information but that it was “possible” (Simarova: 44-47).
I note that none of the three Department of Education members present at the IEP meeting had ever seen the child except for Ms. , who observed the child one day for a period of 45-minutes during which the child was working one-to-one with his teacher the entire time (Simarova: 37; DOE Ex. 3). The Department of Education did not present any evidence to show how the members of the CSE, who had no knowledge of the child, developed goals for him which, in fact, were for the most part inconsistent with evidence of his current abilities. Nor was there any evidence about why the CSE removed the clearly relevant references to “ teaching” and other information from the goals provided by Stars or how those goals remained appropriate in the absence of the deleted information.
Thus, I find that the goals referenced above were not designed to provide the child with an educational benefit and thus deprived him of a FAPE.[14]
B. The child’s parents contend that the BIP included in the IEP is not appropriate and that it was improperly developed without a Functional Behavioral Assessment (“FBA”) (Parents’ Exs. A at 4, EE at 11-12).
Ms. testified that did not provide the on the last page of the IEP. After reviewing the she stated that while it “touches on some of the [ ,” it is a “bit vague” in that it does not “talk about function of behavior, or what would happen within each function, or what the intervention should be” ( : 300). Ms. testified that the BIP was developed based on relevant questions about the posed to the people working with him. However, she did not know whether the Department of Education conducted an FBA, noting that the was not “completely new” and that she thought the child had a BIP “prior to that” (Simarova: 56).
I find that the absence of an FBA and the reliance of the Department of Education’s CSE members on only a discussion of the child’s interfering behaviors 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 “FBA 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 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 and that the , standing alone, provides insufficient guidance about to address the child’s numerous and severe interfering behaviors.
C. The parents also argue that the Commissioner’s Regulations §§200.13(d), 200.1(qq), and 200.4(d)(2)(v)(a) required the CSE to include individualized parent training and counseling on the child’s IEP (Parents’ Exs. A at 4, EE at 9-11). I find this claim to have merit as well.
Section 200.13 of the Commissioner’s Regulations, which relates to Educational Programs for , 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 on occasion 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). 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. did not recall whether the child’s mother asked about parent training at the IEP meeting and she testified parent training and counseling is not on the IEP because it is not a related service but rather “programmatic for District schools.” That testimony is clearly counter to the Commissioner’s Regulations cited above (Simarova: 57-59). At the hearing Ms. 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 any evidence that parent training was discussed at the IEP meeting, was also a deficiency in the IEP.
While any of the above procedural violations, standing alone, may not have deprived the child of a FAPE, I find that as a result of those violations, in conjunction with the substantive deficiencies in the IEP indicated above, the IEP was not reasonably calculated to provide the child with educational benefits.
D. The parents also assert that the program recommended by the CSE was inappropriate to meet the child’s educational needs and that the recommended placement at was also inappropriate (Parents’ Exs. A at 5-7, BB at 13-17). I agree and find that there was no evidence at the IEP meeting to support that recommendation.
Ms. who last observed a class several years before the impartial hearing, testified that the CSE team relied on the information provided by the parents and the child’s “entire file” to develop the IEP. However, Ms. who participated in the IEP meeting by telephone, testified that she did not agree with the determination of a class and that all of the Stars IEP participants were “on the same page” about the fact that the child required one-to-one programming. And, the child’s mother testified that she asked for one-to-one programming. Moreover, none of the progress reports or evaluations provided to the CSE prior to the IEP meeting lent any support to a conclusion that a program was appropriate. And, the Department of Education’s own observation by Ms. indicated that the child was with a teacher the entire time ( : 37; DOE Ex. 3).
Notably, Ms. acknowledged that the participants at the IEP meeting did not agree with a placement and she testified that the , who testified at the hearing, stated at the meeting that the child was not even ready to have in a group of two because a dyad “would be too distracting for him” ( : 34-35). In addition, the child’s mother testified that when she asked for a one-to-one program the CSE told her at the meeting that it does not have a site that offers staffing. And, the hearing Ms. testified that is the most restrictive setting in a public school building ( : 331; : 35-37). In light of the findings of fact stated above I conclude that the CSE gave no consideration to any of the participants at the CSE meeting who actually knew and worked with the child or to the progress reports and evaluations that all recommended one-to-one program for the child. And, I note that the page of the IEP indicating the other programs and services considered does not even mention consideration of a program or the reasons such a program was rejected (DOE Ex. A at 23). Thus, it seems apparent that the CSE did, in fact, predetermine the child’s placement as alleged by the child’s parents (Parents’ Ex. EE 45).
Moreover, the testimony at the hearing left no doubt that a class with a crisis intervention paraprofessional would not provide the child with an educational benefit. As detailed in the summary of the evidence presented above, Ms. , Ms. and Ms. all testified about the child’s demanding interfering behaviors and explained why, at this juncture the program recommendation on the April 11, 2011 IEP is inappropriate for the child. In particular Ms. testified that the child cannot learn a new skill in a group even with a teacher. All three of the witnesses described the child’s severe interfering and detailed how those behaviors are addressed throughout the day, always with a - teacher or therapist. And, as noted earlier, Ms. stated at the IEP meeting that the child cannot yet have speech in a group of two because the situation would be too distracting for him. In addition, Ms. explained why a paraprofessional is not equivalent to a trained teaching professional and why a class with a crisis paraprofessional would not meet the child’s educational needs. Notably, there was no evidence presented at the hearing to show that a crisis-management paraprofessional would be able to address the child’s needs. Indeed, despite the CSE recommendation Ms. testified that she did not know what type of training the crisis management paraprofessional would have before working with the child or what exactly she would do for the child (Simarova: 40-41).
The testimony by Ms. , the principal of , did not provide any evidence to support a conclusion that would have provided the child with an educational benefit. While Ms. is the principal of she is only at the 289 site twice a month. And, while she testified that the child’s learning profile is within the range of learning profiles of other students in the school, she testified that she based her opinion only on the documents provided to her by Dr. prior to the hearing. In fact, she conceded that her opinion that the school would be the least restrictive environment for the child was based only on a “verbal description of the child” and on the “general belief that most of the time when referrals are made they’re appropriate” as well as on page 9 of the IEP, which lists the child’s mandated related services ( : 88-89, 110-111; DOE Ex. 1 at 24). Ms. was not familiar with the students at the 289 site. She did not know whether any of the students who would have been in the child’s proposed class were using a or how many of the students were verbal or non-verbal. Nor did she know whether any of the therapists were trained in PROMPT methodology, which, Ms. testified, was “imperative” to the child’s communication ( : 89, 108-109, 116; Rice: 201).
In addition, Ms. estimated that the functioning levels of the students who would have been in the child’s class ranged from to a third or grade level; however, the child is only functioning at a , which is below or beginning kindergarten ( : 117; : 53-54; DOE Ex. 1 at 3). The discrepancy between the academic levels of the students in the proposed class and the child’s learning levels was highlighted by the mother’s testimony at the hearing. In particular, Ms. testified that after receiving the FNR and being advised that the child’s teacher would be Ms. St. , she visited Ms. St. ’s class at with the child’s teacher, . Ms. detailed why she believed that the students in that class were much too high functioning for the child. She also explained that the lunchroom, which housed both general and special education students, would be “very overwhelming” for the child who would “cover his ears and start screaming” and would get out of his seat and not eat, whereas the students in Ms. class were all “ ” and ( : 350-351; Parents’ Ex. D).
I find that the recommendation of a program for the child at is not supported by any of the testimony, the documentary evidence, the participants at the IEP meeting or the child’s parents. Thus, I conclude that the Department of Education failed to demonstrate that a class with a crisis-management paraprofessional could meet the child’s needs and provide him with an educational benefit.
* * *
For the reasons stated above I find that the IEP was procedurally and substantively inappropriate and not reasonably calculated to provide the child with educational benefits. I also find that the program recommended for the child was not appropriate. Thus, I conclude that the Department of Education has not met its burden in demonstrating that it provided the child with a FAPE for the 2011-2012 school year. 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 and citations will not be included here. To summarize, there are four students in the child’s class, one head teacher, three additional teachers and a speech therapist. Ms. Wasserman, the executive director of Stars, testified why the class is appropriate for the child. Ms. Wasserman, Ms. and Ms. , the child’s who is in the child’s class all day, all testified about the instruction and activities that are helping the child in his pre-academic skills, his in fostering his independence.
All of the witnesses testified about the child’s behaviors and his deficits in expressive and receptive language. Ms. , Ms. and Ms. testified about the sensory diet that Ms. developed for the child and the positive effect it has had on the child’s behaviors. In addition, Ms. and Ms. provided detailed testimony about their work with the child in and , respectively, and how their work is helping to meet the child’s needs and is resulting in but steady progress. While the child is in a program, the evidence showed that the child does participate in a group with the assistance of a teacher. And, while the testimony indicated that the child cannot learn a new skill in a group setting, that environment is used for the child to generalize the skills he has already learned.
Ms. and the child’s mother both testified that parent receives training in working with her child and that the school has provided her with tools to work with the child at home and ways to help the child interact with his siblings. In addition, while evidence of progress and achievement is not required to sustain the parents’ burden, all of the parents’ witnesses gave examples of the child’s progress since the beginning of the school year, including in the area of expressive and and and social skills.
In light of the forgoing findings of fact and the more detailed testimony included elsewhere in this Decision, I find that the parents sustained their burden of demonstrating that Stars is an appropriate placement for the child for the 2011-2012 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 supports a finding that the equities favor the parents and Mr. does not argue otherwise.
In brief, the IEP meeting was conducted on April 11, 2011. After receiving the FNR dated June 4, 2011, the child’s mother, accompanied by the child’s teacher, , visited the school on June 22, 2011. They toured the school and met with Ms. , the person that had been identified to the parents as the child’s prospective teacher. The next day the child’s mother wrote a letter to the CSE detailing the reasons that she did not believe the school was appropriate for the child and asking for “information on any other programs or placement that may be appropriate” for the child for the 2011-2012 school year. Ms. also stated that since school “will be starting soon” and the parents did not have an appropriate placement offer from the Department of Education, the parents intended to “continue to send” the . The parents never received a response to Ms. ’s letter or the offer of any other placement.
In light of the above findings of fact I conclude that the equities in the case favor the parents.
ORDER
In light of the above findings of fact, it is hereby ordered that:
Within 30 days of receiving a copy of the tuition contract for the 12-month 20112012 school year at and proof of the child’s attendance and payment of the tuition by the parents, the Department of Education is reimburse the parents in the amount they paid to the school for the tuition. The amount to be reimbursed is not to exceed $93,000.00. Dated: April 26, 2012
_________________
RONA FEINBERG, ESQ.
Impartial Hearing Officer
RF:gc
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 DESCRIPTION
A Demand for Due Process and Pendency, 7/15/11, 8 pages B Amended Findings of Fact and Decision by Impartial Hearing Officer , 5/1311, 20 pages C NYC Department of Education IEP, 4/11/11, 25 pages D Letter from Parent to and with fax confirmation, 5/22/11, 3 pages E Letter from Parent to , 5/13/11, 2 pages F Final Notice of Recommendation, Annual Review and Reevaluation,
NYC DOE, 5/4/11, 1 page G Letter from Parent to and with Fax Confirmation, 5/19/11, 2 pages H Notice of Recommended Deferred Placement, 4/11/11, 2 pages I 2011 to 2012 Classroom Profile, , 1 page J 2011/2012 Individual Schedule, , 1 page K 2011/2012 Individual Education Plan, , 13 pages L Educational Progress Report, , 12/6/11, 3 pages M Speech and Language Progress Report, by , MACCCSLP and
MSCFSLP, 12/11
N IEP Goals Report, 12/1/11, by , MACCCSLP, , MACCCSLP, and
Hope Rice, MSCF-SLP, 4 pages O Speech and Language Annual Evaluation, 6/15/11, Center by ,
MACCCSLP, 7 pages P Occupational Therapy Goals, 6/24/11, by , OTR/L, , OTR/L , OTR/L,
3 pages Q Occupational Therapy Evaluation, 6/17/11, ,
By , OTR/L, , OTR/L and ,
OTR/L, 8 pages R Educational Progress Report 6/15/11, , 4 pages S Assessment of Basic Language and Learning Skills Revised, 5/23/11, ABLLS-R,
Skill Tracking System, 3 pages T Complete Items Report for ABLLS-R printed 10/19/12, 5/23/11, 12 pages U Incomplete Items Report for ABLLS-R printed 10/19/11,5/23/11, 60 pages V Affirmation of Tuition, with proofs of payment, 11/17/11, 5 pages W Enrollment Contract, , 9/12/11, 3 pages X Attendance Card, 12/21/11, , 1 page Y 2011/2012 Occupational Therapy IEP Goals, , 4 pages Z Therapy Report, , 12/22/10,
OTR/L and , OTE-L, 9 pages AA October 2011 Sensory Diet, , 1 page BB Attendance Card, 2/2/12, , 1 page CC Affirmation of Tuition , 2/15/12, 1 page DD Proof of Tuition Payment, 2/16/12, 2 pages EE Petitioners’ Post-Hearing Memorandum of Law, 4/3/12, 30 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 NYC DOE IEP, dated 4/11/11, 25 pages 2 Educational Progress Report, 12/15/10, 1 page 3 Observation, 1/3/11, 2 pages 4 Parental Letter, 6/13/11, 1 page 5 Parental Letter, 6/22/11, 2 pages 6 FNR, 6/4/11, 1 page 7 Class List, 6/6/11, 1 page 8 Closing Argument, 4/2/12, 3 pages
Footnotes
[1] Citations to pages 29-59 and 63-64 refer to Ms. ’s cross-examination of the witness.
[2] Ms. had seen a class several years prior to the IEP meeting and she has observed three or four of those classes during her career ( : 31).
[3] Ms. has a school mandate of 5x 60 for speech and so she “guess[ed]”that the child was receiving that amount of therapy ( : 33). However, she explained why she believes that 5 x 60 is not appropriate for the child ( : 63-64).
[5] Ms. testified that while the parent may have been told prior to visiting the school that the child would be placed in Ms. class, in September the classes are created based on “who actually is present and that may differ” from “what appeared t be the case back in June : 97-98).
[7] Citations to pages 357-359 refer to Dr. ’s cross-examination of Mr.
[8] Ms. has been licensed in special education since 1993; she has been a special education teacher and is licensed in school administration and supervision ( : 225-228, 232). She has taught children with for four or five years and then became the director of that program. Subsequently she was an supervisor at another program and she worked with children on the in their homes.
[10] She stated that when she inquired about the training of the teachers and paraprofessionals she was told that “basically” an coach comes to the school, “maybe more frequently” at the beginning of the school year but “as the school year goes on it might be once a month or once every few months, or even not at all.” Ms. has also spoken to principals, assistant principals and people who have worked with within the school system who told her that paraprofessional training is “minimal,” may be a one-day workshop or a staff development day at the school. Therefore, she opined that the paraprofessionals are “not fully trained” in any specific methodologies or specific : 288-289, 312-313).
[12] Each discipline receives supervision and training once a month from the . The occupational therapy supervisor of , , who has a doctorate in occupational therapy, also comes to and helps assist in areas of troubleshooting; he also observes and provides feedback ( : 176, 189).
[14] I also agree with the parents that that the IEP is deficient in that on page 1 it recommends the use of an device but pages 5-A and 5-B of the IEP indicated that the child does not require such a device (Parents’ Exs. A at 2, C at 6-7 and EE at 12-13). Moreover, although the observation report by Ms. states that the child had mastered all phases of , page 3 of the IEP indicates that the child communicates using (Parents’ Exs. C at 3 and EE at 12-13).