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CORRECTED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 21, 2011
December 15, 2011
January 19, 2012
January 26, 2012
February 13, 2012
March 1, 2012
March 29, 2012
April 3, 2012
April 4, 2012
Actual Record Close Date: July 20, 2012
Hearing Officer: Martin J. Kehoe, III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2011
Attorney — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2011
Attorney — Student
Legal Intern — Student
Parents
District Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2012
Attorney — Student
Parents
District Attorney — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2012
Attorney — Student
Parents
District Attorney — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2012
Attorney — Student
Parents
— DOE
District Attorney — DOE
Social Worker (via telephone) — DOE
IEP Coordinator (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2012
Attorney — Student
Parents
Occupational Therapy Supervisor (via telephone) — Student
District Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 29, 2012
Attorney — Student
Parents
J.D. — Student
Physical Therapist (via telephone) — Student
Speech Therapist (via telephone) — Student
District Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 3, 2012
Attorney — Student
Parents
J.D. — Student
Clinical Director (via telephone) — Student
ABA Therapist (via telephone) — Student
District Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 4, 2012
Attorney — Student
Parents
J.D. — Student
Principal (via telephone) — Student
Special Education Teacher (via telephone) — Student
— Student
District Attorney — DOE
— DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case. The central issue is whether or not the District offered the Student a Free Appropriate Public Education (FAPE). According to a three prong test set forth by the Supreme Court, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent:
(1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]). The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), SRO decision 11-035, (See also, SRO decisions 10105 & 11-010)
Parents’ Position
In the complaint notice dated August 26, 2011 (Ex. A) it is asserted that the District failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement recommendation for the 2011-2012 school year. (Ex. A) The Parents are requesting tuition reimbursement for the unilateral placement at the private school, reimbursement for 15 hours of weekly home-based ABA services, 2 hours of weekly services, 3 thirty minutes of weekly physical therapy services, and reimbursement for 40 hours weekly of home-based services for the time before and after the summer program. (Ex. A)
District’s Position
It is the District’s position that they offered the Student a FAPE, for the 20112012 school year, that the May 12, 2011 (IEP) meeting was legally constituted, and that they reviewed relevant evaluations and progress reports, in order to recommend their placement. Further they allege that the Private School is not appropriate and that the equities do not favor the Parents.
Student History
The Student has been classified with , which is not in dispute. She has also been diagnosed with . (Ex. J) At the time the hearings first began, in September 2011, the Student was old. The Student began receiving related services in old. (TR. pp. 1174- 1175) She had a Special Education Itinerant Teacher (SEIT) with her in a mainstream school and at home. (Tr. p. 1176) The Student has been attending the same private school for students with since the 2007-2008 school year. (Tr. p. 1177) In a bilingual psychoeducational evaluation, dated September 6, 2007, taken when the Student was years old, she was evaluated with the Stanford-Binet Intelligence Scale 5th edition and “scored within the moderately deficient range for both IQ yielding full scale IQ within the moderately deficient range.” (Ex. I) She demonstrated strengths in quantitative reasoning. (Ex. I) In the latest bilingual evaluation, dated 4/4/11 (Ex. 3), the Student received the same score on the Stanford-Binet Intelligence Scale 5th edition as on the previous test. She received a score of “ ” in every area of academic achievement on the Woodcock Johnson III Test of Achievement. She received a in communication, self-care skills, and socialization in the area of adaptive functioning. (Ex. 3) (Vineland Adaptive Behavior Scales) Among her difficulties, she only uses the , does or , , and “her insight and judgment at best.” (Ex. 3) The evaluator said the Student only interacted in English during this evaluation (4/4/11) and did not respond in Yiddish. (Ex. 3)
In the classroom observation, conducted on 10/14/10 (Ex. 4), the Student was observed during instruction. The District psychologist noted that the Student “required constant refocusing and verbal prompts to progress through the trials. [The Student] attempted to leave her seat, but responded to requests to continue to work for her activity. Discrete trials were used and she earned tokens that were redeemed for a few minutes of time with a preferred activity. She was compliant and worked willingly.” (Ex. 4)
In the Quarterly Review of IEP Goals, dated January 2011, the classroom teacher wrote that the Student has made progress in making requests, in stating the corresponding sounds for three letters, and is beginning to blend sounds, can rote count up to 15, and can pay attention during a short story and answer a related question. However, she has .
For example, she .” (Ex. 7) In the Educational Annual Review, dated June 2011, the classroom teacher wrote that the Student “exhibits
Regarding her cognitive skills it is reported that the Student has shown progress throughout the year. The clinician gave several examples: . (Ex L. p.2)
The physical therapy progress report, dated May 13, 2011, reflects that the Student “presents with generalized at her major joints… , sensory .” (Ex. K) The therapist wrote that these conditions “affect her over-all strength, balance and coordination.” (Ex. K) The Student’s “ are delayed both functionally and qualitatively.” (Ex. K) The Student also has “poor motor planning skills, poor coordination and poor balance skills..”(Ex. K) In the annual review, dated June 2011, the therapist gave the results of standardized assessments. In the Bruininks-Oseretsky Test of Motor Proficiency the Student scored ” in the subtests for in visual perceptual motor skills. (Ex. M) In the summary, the therapist wrote: “She presents with in therapy. (Ex. M) In the speech-language progress report, dated 6/16/11, the pathologist wrote that the Student has deficits in “ .” (Ex. N) The Student has shown improvement in receptive language, such as identifying “common objects and some novel ones based on feature, function and class descriptors,” (Ex. N) but still has other difficulties such as with temporal concepts. (Ex. N) With , “she will use 3-5 word phrases to comment and request objects, but her syntax is poor. She relies on prompting to request information.” (Ex. N) With pragmatics, the Student “ comments in conversations with her peers, as well as maintaining the topic of conversation. (Ex. N) In the ABA home program annual report, dated November 27, 2011, the therapists write: “[The Student’s] skill deficits exist domains.” (Ex. P) They add that she has difficulties with transitions and unstructured times. (Ex. P) “[The Student] demonstrates problem behaviors when there is a change in routine within a game activity or within her daily schedule. These problem , .” (Ex. P) They recommend “that the current level of 15 hours weekly of home services be maintained.” (Ex. P)
Background of the Case
The IEP meeting was held on May 12, 2011 and resulted in a recommended 12 month program delivered in a special school with a size and the related services of . There would also be a full-time, individual, behavior management paraprofessional.
At the December 15, 2011 hearing, the District School Psychologist testified about the IEP meeting, which was a triennial review. She was the and District representative (Chairperson) for the Committee on Special Education (CSE) team.
She said that everyone at the meeting was asked to summarize the Student’s progress and review their goals. (Tr. pp. 29-30) She said prior to the meeting, she reviewed the current bilingual and the school progress reports, and during the meeting the committee reviewed the new bilingual (Tr. p. 31). She explained how the team developed the related service recommendation and goals (Tr. pp. 34-43). She testified that they discontinued the Student’s bilingual services because of the results of her evaluation; her current curriculum, which is in English; and because her parents speak English at home. (Tr. pp. 44-45) At the January 19, 2012 hearing, the psychologist continued her testimony about the CSE meeting. She explained what a bilingual program is and how it is recommended. (Tr. pp. 81, 85-86, 92-94) She testified about the goals on the IEP; some goals were changed during the IEP meeting (Tr. pp. 97-98). She spoke of the service provider’s reports in OT, speech, and PT. (Tr. pp. 107-117) She responded to questions about the Student’s academic performance and needs as addressed on the IEP. (Tr. pp. 117-123) She also testified that she doesn’t think the Student required ABA exclusively. (Tr. pp. 124-125) She responded to questions about how the IEP addresses the Student’s academic challenges, and her . (Tr. pp. 126, 128-129)
The District next called the Social Worker for the district who performed a social history update immediately before the CSE meeting on May 12, 2011. This basically involved a telephone call to the student’s mother several days before the meeting and a discussion with the Student’s mother immediately prior to the start of the meeting. He then participated in the meeting. (Tr. pp. 344-346, 371) He testified that the Student spoke English in her home. (Tr. P. 346)
The Unit Teacher from the recommended placement testified next. She indicated that there was a space available for the Student at the beginning of the school year, (Tr. p.
446) that was available (Tr. p. 449) and discussed the role of the behavior management paraprofessional. ( Tr. p. 464) With this testimony, the District rested.
The Parents’ first witness was the Supervisor from the Private School. (Tr. p. 567) She has known the Student as her occupational therapist for five years. (T. p. 567)
She described the rigorous course of therapies that the Student receives at the Private School including the strategies to assist in transitioning from home to school such as “deep pressure input,” specifically a massage, joint compressions and motor activities: i.e. obstacle course; the use of so the student can utilize her body in new and novel ways and the development of gross motor skills through activities such as relay races, playing catch and running. (Tr. p. 570) Among other things she described the Student’s grapho-motor skills deficits. (Tr. pp. 579-580) She also explained the results of her administration of the Bruininks-Oseretsky Test of Motor Proficiency and the Beery Buktenica Developmental Test of Visual Motor Integration. She testified that the educational implications of her findings require “. . . a very specific individualized program . . .” (Tr. p. 593)
The next Parent witness was the Physical Therapist from the . She testified about the Student’s particular physical issues (Tr. pp. 665 et seq.) as well as her familiarity with and how it applies to the Student in her PT sessions. (Tr. p. 680) During her testimony the fact that the physical Therapy goals were added to the IEP the day following the CSE meeting came to light. (I note that the PT report (Ex.s 10 & K) is dated 5/13/11), (Tr. pp.690-691) She testified about the Student’s progress during the last year at the Private School with several specific examples. (Tr. pp. 697- 706)
On the same day the Pathologist from the testified. She described her role with the Student and described the Student. (Tr. pp. 739-742) Much of her testimony describes the specific teaching mechanics employed with the Student including the . (Tr. pp. 751-
759) When asked about the District proposal to “pull-out” services five times per week for 30 minutes she gave the opinion that “ . . . it was unnecessary and it does not allow [the Student] to learn from her and participate in the activities and activities that should be going on in the classroom.” (Tr. p. 760) She also testified that she attended the CSE meeting in May 2011 and that she was unable to quantify the at the because of the use of the employed at the . She also admitted that she stated to the CSE that she was unable to make recommendations as per the . (TR. p.763) She indicated the procedure employed by the CSE in drafting the goals. Basically there were goals pre-prepared and each related service providers was handed those proposed goals and asked to modify them if needed. (Tr. p. 766) Her own up-dated evaluation was not complete at the time of the CSE meeting. (Tr. p. 779) She testified that the Student has progressed at the during the 2011-2012 school year. (Tr. p. 785)
The Clinical Director of the testified next. She is a board certified behavioral analyst and holds permanent certification in New York State as a special education teacher. (Tr. p. 843). At the she provides initial and ongoing training to staff; she assists in writing the curriculum program books for each student; runs the weekly team meetings to review student progress; oversees a staff of 40; and, conducts ( ) and creates with staff. (Tr. pp 844-845) She described the Student as a very sweet little girl who appears young for her age. While she does display some problematic behaviors she is responsive to intervention. (Tr. p. 851) She opined that the Student is making slow, steady progress academically. (Tr. pp. 851-852) She also discussed the Student’s and the Private School efforts to address these concerns. (T. pp. 859- 875) She recounted her perceptions related to the May 12, 2011 CSE meeting (Tr. pp. 900-911 ) and was examined regarding her opinions as she understood the goals and objectives that were ultimately incorporated into the District recommended IEP. (Tr. pp. 915 - 916 & Ex. 2)
One of the Student’s Home providers testified next. She supplies 11 hours of services a week and her counterpart supplies another four hours per week (Tr. pp. 1076- 1077) She has worked with the Student for four years and when the number of hours of service have been decreased there has been an increase in the number of negative behaviors. (Tr. p. 1084) She testified that during the past year the Student has enjoyed “Tremendous progress . . .” (Tr. p. 1087)
On the last day of testimony three witnesses testified. First, a District employee and record custodian who answered a few foundational questions about a document which was then admitted into evidence. (Tr. p. 1113 & Ex. II)
Next up was the Student’s Teacher at the . She went to check the recommended site of the District. (Tr. p. 1128) She observed that the proposed placement was in a very large and noisy room. (Tr. p. 1136) She opined that it was not an appropriate environment for the Student. (Tr. p. 1140) It was her opinion that the Student neds a “quiet work environment”. (Tr. p. 1143) She had the impression that the students that the Student would be placed with were at a higher functioning level than the Student. (Tr. pp. 11611162)
Finally the Parent testified. She described her child, the Student, (Tr. p. 1174) and the details of her attendance at the CSE meeting. (Tr. p. 1184) She described her visit to the proposed placement (Tr. pp. 1248-1258) and then she answered questions concerning the details of the case.
The final notice of recommendation was sent to the Parents on June 15, 2011. On July 7, 2011, the Parent sent a letter to the Chair of the CSE, stating that the placement was not appropriate. (Ex. F) Her specific concerns were that the other students were at a higher level academically and have different behavior needs, the Student needed more individualized instruction and applied behavior analysis, and the school environment is too loud and distracting. She also said the Student needs a program with “bilingual Yiddish support” as Yiddish is her dominant language. (Ex. F) She asked the CSE Chair to send more information about the class and program. (Ex. F) On August 8, the Parent sent a second letter to the CSE Chair, stating that she had not yet received the program information she had requested in her letter of July 7, 2011. (Ex. G) She repeated her previous concerns about the placement and said she was unilaterally placing the Student in a private school and would request an impartial hearing to obtain funding. She requested that the District provide bus transportation. (Ex. G)
The IEP program was scheduled to begin on July 5, 2011 and the services were for one year. The Parents requested an impartial hearing on August 26, 2011, (Ex. A); after a hearing on September 21, 2011, an interim order of pendency was issued on September 22, 2011.
LEGAL BACKGROUND
The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)
The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
- (A) have been provided at public expense, under public supervision and direction, and without charge,
- (B) meet the standards of the state educational agency,
- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[1]
A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs.
20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)
In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)
With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)
ANALYSIS
Prong I
The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20010-2011 school year. The Parents have raised both procedural and substantive violations.
Below I identify the main issues and segregate them according to their nature as either procedural or substantive while recognizing that there are often features from either category in any given issue. Procedural Issues:
1) Insufficient triennial evaluation of the Student in all the areas of need;
2) District failed to conduct updated evaluations in and
3) District failed to conduct an appropriate a or develop an adequate
4) The CSE did not discuss the behavioral intervention plan with the Student’s Parent, providers, or teachers, which prevented them from participating fully at the meeting and in the development of the IEP; and,
5) The CSE did not share the IEP goals with the Parent or discuss the Student’s progress;
Substantive Issues:
1) The Parents argue the special class recommendation is inappropriate as the Student needs more individual instruction because of her special needs;
2) The Parents assert that the triennial evaluation which was conducted was “substantively inappropriate and misrepresents [the Student’s] special education needs.” (Ex. A) One problem is that the Student’s scores are not provided on the evaluation; (Ex. A)
3) The present levels of performance on the IEP are insufficient and do not provide a baseline to measure the Student’s progress, the academic present levels of performance are not consistent with the District’s evaluation results, the IEP does not have sufficient detail about the Student’s strengths, weaknesses, preferences, and needs;
4) The IEP goals are “insufficient, inappropriate, vague, un-measurable, and lack methods of measurement;”(Ex. A)
5) The District failed to provide training and counseling for the Parents;
6) The Parents assert the CSE removed the Student’s bilingual Yiddish classification without sufficient information and despite the objection of the Student’s Parent and the five members of the Student’s private school staff;
7) The Parents determined the placement would be inappropriate after the Student’s mother and teacher visited it. Their concerns include: the student to teacher ratio, a paucity of structure and support, apprehension that the other students in the class would not be a suitable peer group because of their different needs and because they are older than the Student; also, that the placement does not offer a program to address the Student’s behavior;
8) The Parents also consider it a problem that the program does not have a behavior analyst who would be able to give the Student a Assessment or Plan. The
Parent’s observations of the school, classroom, and related services facility led her to conclude that placement would be too noisy and cause the Student anxiety.
The Parent is also concerned that the placement does not have the equipment to address the Student’s processing needs or Services;
Procedural Violations
Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.
1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)
The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.
For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
First, I will address the procedural challenges regarding the claims of an insufficient triennial evaluation of the Student in all the areas of need and the failure to conduct timely evaluations to obtain current information. Federal and state laws require that districts reevaluate a student with a disability at least every three years. 20 U.S.C. § 1414(2)(B)(ii); 8 N.Y.C.R.R. § 200.4(4).
The district failed to meet this minimal requirement, as the reevaluation process for the Student did not begin until October 2010, over four years after the last evaluation. (Ex. 4, I)[2] Moreover, the District spent 7 months completing the reevaluation process, thus failing to comply with state law requiring that an evaluation be completed within 60 days. 8 N.Y.C.R.R. §200.4(b)(1). (T. 377; Ex. Y, 5,6) The CSE was thus cognizant that the Student’s triennial was past due, yet still failed to complete the evaluation in a timely fashion.
Further, the regulations identify the duty of the District with respect to evaluations in 8 NYCRR 200.4(4), et. seq.:
A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.
(5) Determination of needed evaluation data.
(i) As a part of an initial evaluation, if appropriate, and as part of any reevaluation in accordance with section
200.4(b)(4) of this Part, a group that includes the committee on special education, and other qualified professionals, as appropriate, shall review existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related services providers.
The group may conduct its review without a meeting.
(ii) On the basis of that review, and input from the student’s parents, the committee on special education and other qualified professionals, as appropriate, shall identify what additional data, if any, are needed to determine:
(a) whether the student has a disability as defined in section 200.1(mm) or (zz) of this Part, or, in the case of a reevaluation of a student, whether the student continues to have such a disability;
Notwithstanding the asserted procedural irregularities, I find that the CSE possessed numerous reports and documents when contemplating the development of the IEP for the Student. The School observed the Student at the (Ex. 4 & Tr. p.52) The CSE also possessed a bilingual evaluation that, in addition to cognitive and academic testing, contained a Vineland Adaptive Behavior Scale (a survey that requires information from the parents). (Tr. p. 48 & Ex. 3) The evaluation was reviewed at the IEP meeting. (Tr. p. 31) The social worker conducted a social history update on May 12, 2011, prior to the IEP meeting. (Tr. pp. 343-346) Additionally, there was review of a previous psycho-educational evaluation, a current progress report from the private school, an OT progress report, and a speech and language progress report. (Tr. p. 31 & Ex.s 7, 8, 9, 11). Upon being informed at the IEP meeting that the Student was receiving physical therapy after school, the requested that the Parent submit a progress report from the current physical therapist. (Tr. p. 38) The report was reviewed and the recommended goals were incorporated before it was finalized. (Tr. p. 39) Accordingly, the CSE possessed current reports and evaluations reflecting the Student’s areas of strengths and deficits.
Additionally, I find mitigation of the above claimed errors in the fact that the meeting was well attended and there was considerable input from the providers working with the Student. “Reevaluations must take place whenever the CSE, the student’s parent, or the student’s teacher deems it appropriate, but at least once every three years, and must be "sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education." 8 NYCRR 200.4[b][4] One component of both an initial evaluation and of any reevaluation is a review of existing evaluation data to determine what additional data, if any, are needed in order for the committee to make appropriate recommendations for the student. 8 NYCRR 200.4[b][5] (See also, SRO # 02-008) I do not conclude that the purely procedural irregularities relative to these evaluative materials have: 1) impeded the student’s right to a free and appropriate public education; 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education; or, 3) caused a deprivation of educational benefits.
Turning now to the next batch of allegations, I am more concerned. Here the claims include that the CSE did not discuss the behavioral intervention plan with the Student’s Parent, providers, or teachers, which prevented them from participating fully at the meeting and in the development of the IEP; and, the District failed to conduct a functional behavior assessment or develop an adequate behavior intervention plan and the CSE did not share the goals with the Parent or discuss the Student’s progress.
In this context I must return to the CSE’s failure to obtain consent for the reevaluation. The Parent gave oral consent on the phone to the evaluation, (Tr. P.P. 1207-1208) but was never asked for written consent for the classroom evaluation (Tr. P. 1193) or contacted about an , social history, or related services evaluations. (Tr. PP. 1199-1201; 1205-1206)
Federal regulations require that notice “describ[ing] any evaluation procedures [the] agency proposes to conduct” be provided to the parents before the evaluation begins. 34 C.F.R. § 300.305(a)(2). The parent also was completely unaware that a FBA was conducted until the start of this impartial hearing. (Tr. p. 1205)
However, the Parent admitted in her testimony that she “was informed of her rights. . .” (Tr. p. 1210) and did not inform the CSE about the Student’s home services because she assumed they already knew, as the District is funding it, and she said at previous meetings, she was told it was not a service that could be included on the IEP and did not think it necessary to bring it up for discussion. (Tr. p. 1337) It seems that both sides contributed to the lack of adequate information through misunderstanding and failure to communicate.
During the hearing, the District answered questions from the District attorney regarding a FBA that she said she wrote before the meeting and shared it with the CSE team during the meeting (Tr. pp. 139-140); but later admitted that she didn’t know if anyone else read it besides the private school’s clinical director. (Ex. 6 & Tr. pp. 147-
148) The said she based the assessment on the observation and teachers’ reports (Tr. p. 140). She later added when questioned, “There was no assessment data taken, no data taken.” (Tr. p. 213)When questioned whether she had discussed the FBA with the Parent earlier, she replied, “I did not discuss that with the Parent. I considered it to be implied and inclusive in this evaluation.” (Tr. p. 145) When asked if she had spoken to the Parent about obtaining updated evaluations, she said no. (Tr. pp. 223-225) The Clinical Director of the Private School, who attended the CSE meeting, was asked at another hearing date about the . She testified that it was not discussed at the meeting. (Tr. p. 943) The Parent testified she did not see the until the day of the hearing. (Tr. p. 1205)
Again, the burden of the District is relatively “modest,” See, Straube, supra, and the threshold for a finding of a procedural violation is high. See, 20 U.S.C. § 1415(f)(3)(E)(ii), supra Although the was conducted in an unorthodox manor and the BIP was not an item of major discussion at the CSE meeting, these pieces were in place when the IEP was finalized. Accordingly this set of procedural challenges must fail.
Substantive Claims
Of the substantive claims of the Parents, I first address the argument that the 6:1:1 special class recommendation is inappropriate as the Student needs more individual instruction because of her special needs. The substantive inquiry is whether the IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. "[F]or an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression." D.F. ex rel. N.F. v. Ramapo Central School Dist., 430 F.3d 595, 598 (2d Cir. 2005).
It is evident in this record that the centerpiece of the Student’s education over the last several years has been the provision of an intensive program including SEIT services. The CSE decided to make considerable changes to the education of the Student:
Principally, the removal of significant hours of home SEIT services and a change to a less restrictive class ratio. In order to justify the change, the District bears the burden to demonstrate that it will result in the Student receiving an educational benefit. NY Educ. Law § 4404 (1)(c) They have not persuaded me that they can offer such benefit.
During the 2010-2011 school year the District was funding considerable SEIT services and the CSE should have been aware of this fact when approaching the CSE meeting, but they were not. (Tr. pp. 38, 1220, 1227, 1285, 1338) As a result, the CSE failed to discuss the Student’s home ABA services at the IEP meeting, (Tr. 1239-40) or include any SEIT services in the 2011-2012 IEP. While the District has the prerogative to choose a methodology that would be effective for helping its students, in this case, I conclude that the CSE was not exercising a prerogative but rather they simply made an error and missed the extent of the need, and the services the Student had been receiving.
In fact, the Student has been receiving over the past four years, and there was testimony that it is helping the Student to learn and to . As a compliment to being used throughout the day at school, the home based is also helping the Student. One of the home providers testified that the Student is improving in daily living skills and academics. (Tr. pp. 1083-1086) In the past, when they tried other techniques or reducing it, it led to more negative behavior. (Tr. pp. 1084 & 1078, for a description of negative behaviors) She opined that if were discontinued, it would be detrimental to the Student. (Tr. p. 1090)
It is not clear to me the extent to which debate over methodology was raised at the CSE meeting: Would would continue or would another methodology be utilized? Although a student does not have a right to a certain methodology on the IEP, See, SRO 10-126, when it is considered the reasoning should be sound. The testimony at the hearing indicated that the /CSE chair believed that a change in methodology was warranted: “. . .[W]e felt that and the intensity that the [Student] has this at the [Private School] was not warranted at this time and that she was ready for a different type of program that would allow for a little more autonomy.” (Tr. p. 43) The CSE /chair further testified that the Student would derive a benefit from the introduction of methodologies other than due to her age and the restrictive nature of , which fosters significant dependence. (T. pp. 124-125)
I find this testimony to be inconsistent with actual CSE recommendation wherein the goals and objectives continue to direct the frequent prompting of the Student. (See Ex. 2 pp.7-9) Indeed, the admitted that “[The Student] needed and to progress through teaching trials.” (Tr. p. 319) I also credit the remarks of the Clinical Director who explained that the District IEP (Ex. 2) did not foster independence. (Tr. pp. 921-923) Thus, I reject the rationale of moving the Student to a public placement with a new methodology to promote “autonomy” and independence.
Add to this, the curriculum in the recommended placement is not appropriate for the Student’s functioning level, which was below . (Ex. 3, Tr. pp. 606, 922) The classes follow a daily schedule of 45 minutes of Social Studies, Science, Arts, and Technology. (Ex. II) According to the Clinical Director of the , the Student could not pay attention for such long periods of time. (Tr. pp.. 958-961) For example, the Student would receive 20 minutes a day of 1:1 instruction. (Tr. pp. 1131, 1254) The Student’s teacher and the Clinical Director of the , who have knowledge of the Student’s needs, both testified that this would not be enough individualized instruction to enable the Student to learn new skills and achieve her goals. (Tr. pp. 918, 1141) The Supervisor added: “She needs a lot of—lot of—lot of cues.” (Tr. p. 593) The Supervisor also reviewed the District recommendations for 14 sessions of related services per week and indicated that “It is way to much . . .” (Tr. p. 602) she needs a consultive model where the therapists consult with the teachers to help develop an individualized plan. Being “pulled out” will interrupt her routine in a way that the Student is not ready for. (Tr. p. 603)
Another significant concern is the inadequacy of the FBA and the resultant BIP. While I found the procedure for conducting the FBA was passable, and the existence of the BIP avoided a procedural violation, these documents and there development is not supported in the record such that I find them substantively reliable.
As indicated above, the of the , who attended the CSE meeting, was asked at another hearing date about the FBA. She testified that it was not discussed at the meeting. (Tr. p. 943) She went further to state that the District does not meet the requirements for an , (Tr. pp. 946-947) and the does not meet the requirements either. (Tr. pp. 952-
953) During the cross-examination of the Unit Teacher from the proposed placement, the shortcomings were further exposed. (Tr. pp. 482-485) Based upon this testimony I conclude the was inadequate as it did not address the causes of the Student’s behavior, identify all of the behavior, include sufficient data, address the contextual factors, or how to manage the behaviors. Likewise, the resulting (Ex 2 ) does not meet the state guidelines as it does not include baseline data, does not adequately define and measure the behavior, identify the function of the behaviors, or include a schedule.
I now turn to the IEP’s goals and objectives. Given the student’s significant academic delays, in this case, I believe the relative importance of the , goals increases. An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability. See, 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]
Without the goals and objectives being adequately developed, it would not be possible to formulate a practice to address the Student’s . Without a baseline of information or the continuity of familiar teachers, the role of the goals and objectives is amplified as the new teachers will have to rely heavily upon the information contained in the IEP. The March 12, 2011 IEP contains overly broad statements regarding the Student’s present levels of performance in many areas of need. (such as skills, mathematics, and reading comprehension), (See generally, Ex. 2; Tr. pp. 290-97) The witnesses all testified that, due to the lack of detailed present levels of performance, the short term objectives the IEP goals were entirely insufficient and un-measurable. (Tr. pp. 612-14; 70809; 769-70; 913-17) Even the District Unit teacher from the proposed program acknowledged that she would likely go outside the IEP to get the full picture. (Tr. p. 488) Again, the District has failed to demonstrate that the move away from ABA would provide educational benefit.
Another issue raised during this hearing was why the IEP scores for the Student’s academic areas were inconsistent with the scores given on the evaluation, (Ex. 3) which was based on standardized tests. The said the IEP scores were based on the input of the teacher, although the scores are attributed to the Woodcock Johnson III test. (Tr. pp. 300-303) I do not believe that this is good practice. An appropriate educational program begins with an IEP which accurately reflects the results of evaluations . . . (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. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In this case, the blending of evaluation results with teacher input to create composite scores is troubling.
Nor do I find that the social history update was conducted correctly. The District social worker testified that he conducted the update with the Parent prior to the beginning of the meeting, (Tr. pp. 344-34) and said he notified the Parent he was going to do the update with her a few days before the meeting. (Tr. pp. 370-371) However, her testimony later contradicted his. Finally, he admitted that the update was not given to any of the CSE members during the meeting. (Tr. p. 387)
A concern expressed by the Parent is the classification of the Student as monolingual in English. Here, I rule for the District. Although the Parent testified that the family speaks Yiddish at home, the Student is fluent in English and receives instruction in English at the private school. The Parent would like a Yiddish-speaking instructor in the classroom with the Student to interpret when she says something in Yiddish or does not understand something in English; however, this is not required by law under these circumstances and the District does not have to provide this service. It is not a viable issue.
It is also asserted that the IEP failed to provide parent training and counseling as required for autistic children. However, the CSE chair testified that parent training and counseling is inclusive in the District 75 program. (Tr. p. 236, See also, Tr. pp. 451-452) The District submits that this is not a flaw of the IEP, as parent training and counseling is always included as part of the District 75 program that was recommended for the Student. The regulations are explicit on this point and it has been consistently held that parent training and counseling must be available for parents. But, the S.R.O. has noted that state regulations include parent training and counseling as a component of the student’s proposed placement in the special class, and the IEP does not therefore have to separately list parent counseling as a component of the student’s program. See, S.R.O. No.s 06-029, 09-053; See also, 8 NYCRR section 200.6[g] [4][ ii] [a],
[g][8] Furthermore, in Application of the NYC Dept. of Educ., Appeal No. 08-140, the S.R.O. determined that in light of the testimony presented that parent training was available at the proposed placement, the district’s failure to include those services on the IEP did not procedurally or substantively result in the denial of FAPE to the student. The same holds true here.
Because of the Student’s , she could not learn in a loud environment, and the testimony indicated that the placement is in a large school, with much noise. The Supervisor testified as to the because of . (Tr. p. 606) She also described the sensory gym at the Private School and opined that it is needed by the Student. (Tr. p. 599) The special education teacher, who visited the school with the Parent testified that it was not appropriate because of the in the classroom, halls, cafeteria, (Tr. p. 1137) and the insufficient amount of instruction time. (Tr. P. 1141) The Parent testified the would make the . (Tr. P. 1249)
The IEP’s recommendation of 7 hours a week of related services on a “pull out” basis (Ex. 2) also presents difficulties for the Student in terms of missing class time, and transitions, and the Clinical Director at the said that being “pulled out” would not enable her to generalize her skills, which is an issue for the Student. The Occupational Therapist said that giving the Student related services on a “pull out” basis would be detrimental. (Tr. pp. 602-604 & 935-936)) She said the Student has a very difficult time with change and transitions and can become . (Tr. p. 605)
The Parents are also concerned that the placement would not meet the Student’s behavioral needs as the Parent and the Student’s Teacher were told during their visit to the school that would be not be utilized, (Tr. pp. 1139, 1255) but the only intervention appears to be a crisis room where students are sent to calm down when displaying inappropriate behavior. According to the Student’s mother, this would only reinforce the Student’s problem behavior, not change it. (Tr. p. 1255)
Given the forgoing, I find that the District did not demonstrate that the proposed IEP offered a FAPE to the Student. Because of this conclusion, I find it unnecessary to address the numerous other issues raised by the Parents and I move to Prong two of the analysis.
Prong II
I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700
F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“ . . . [P]arents 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.”
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.
2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d
Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren
G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
Here, the private school in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported by the testimony of the Parent, educators and service providers from the private school, and exhibits, which consistently demonstrate the Student has made progress at the school. The school is meeting the Student’s academic, , , , needs and is providing her with the daily living skills she will require to function in the world. The District itself apparently recognizes that the school is meeting the Student’s needs, by relying on its reports as evaluative material in lieu of obtaining their own materials.
While the District claims the environment at the is far too restrictive for the Student I am unpersuaded by the proof in the case that this is true. The District testified that the classroom setting at the is “overly structured and overly controlled.” (Tr. p.
165) The instructors in Student’s class outnumber the students, which does not foster independence nor allow for the generalization of skills. (Tr. pp. 165-166) However, as stated above, I have found that the District failed to properly evaluate the Student and this testimony strikes me as speculative and unsupported.
One point that is well taken by the District springs from the testimony of the District School Psychologist who testified that the CSE team felt that the Student required “the intensity and consistency of programming year round” due to the “severity of her autism spectrum disorder…to prevent any regression of her skills.” (Tr. p. 33) After considering the matter I agree. However, this alone does not vitiate the benefit that is provided during the balance of the year at the . While I believe the 40 hours of per week during the summer months seems an excessive remedy for the gap left by the ten month program a the , I am not persuaded that it renders the inappropriate.
The private school, which is for students with , addresses the Student’s behavioral issues by first identifying them with an , then using strategies to improve her behavior within the classroom setting. This has been effective.
The Supervisor testified that the Student has made progress in the areas of self regulation, fine motor skills, daily living skills, visual perceptual skills, and grapho-motor skills. (Tr. pp. 606-608) The Physical Therapist testified that the Student has made progress. (Tr. pp. 697-699) She said the school is appropriate for the Student because “we really meet the individual needs of the Student in all areas of her development.” (Tr. p.
710) The speech language therapist testified that the Student has made progress in understanding directions, (Tr. p. 740) describing and identifying objects, learning new sequences, transitions and changes to schedules, tolerating oral motor exercises. (Tr. p.
783) The Parent testified that the Student has made improvement in her behavior, speech, conversations, ability to ask for things instead of taking them. (Tr. p. 1285)
The and providers integrate into the therapies and collaborate with the teachers. They call this a “consultive” model. The other students in the class are similar in age, size, and academic functioning, which made them suitable peers. (Tr. pp .878-
879) The is addressing the Student’s skills, and her fine and gross motor skills. The Student’s processing deficits are being met through her individual sessions and in therapy included throughout the school day. (Tr. p. 604)
The Student’s home-based services are helpful to the Student both for the home setting and for school, as her behavior at home affects her performance in school.
Through the , she learns to generalize her for every setting. The services are provided by New York State certified teachers. (Tr. pp. 1075 & 1077)
In consideration of the forgoing, I find that the Parents satisfied their burden under the Prong II analysis.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. . . . Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105112 [2d Cir. 2007] quoting Frank
G. v. Bd. of Educ., 459 F.3d 356, 364-365 [2d Cir. 2006]
Accordingly, I move to the Prong III analysis.
Prong III
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."[20] U.S.C. § 612[a][10][C][iii][I] 3; see 34 C.F.R. §
300.148[d] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
When the Parent visited the placement, she asked the teacher if would be provided and when she learned that it wasn’t offered, she gave that as one of the reasons she was rejecting the placement in her July 7, 2011 letter to the CSE Chair, (Ex.F), and again in her letter of August 18, 2012 (Ex.G) The Student is now accustomed to as it is the behavioral program used by her and she would require transitioning to discontinue it. The District did not respond to the Parent about her concerns.
It is also true that to prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” M.C. v. Voluntown, 226 F.3d 60 @ 68(2nd Cir. 2000); Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III). Here, the equities do not completely favor the Parent. I find that the Parent did not genuinely cooperate with the CSE in recommending a public school program for the Student and had no real intention of enrolling the Student in the public school.
The Parents’ claim that both they and the Staff have cooperated fully with the District in seeking a FAPE for the Student, but the testimony does not bear this out. For example, while Parent alleges that the program recommendation, related service mandates, and goals recommended for the Student are inappropriate, the Parent had considerable knowledge of these recommendations at the time of the IEP meeting, but stood mute during the CSE meeting. The record is clear that the Student’s service providers were given the opportunity to review the proposed goals and to make changes. In fact, the CSE team included both the Parent and the . The CSE meeting was held at Private School in order to facilitate the attendance of all of Student’s service providers.
Rather than provide the CSE with constructive feedback, however, these providers did little to facilitate the request to “make changes” to the proposed goals. They offered various excuses for their failure to cooperate, ranging from insufficient time to provide input to the fact that they did not have the Student’s then current goals or their data with them at the meeting. (Tr. pp. 766, 773, 796-797, 804, 1016-1018) Neither the Parent nor the staff requested additional time to review the goals, nor the opportunity to consult their own documents. (Tr. p. 1017) Moreover, the Student’s providers testified that they could not comment on the related service mandates recommended on the Student’s IEP because they could not speculate on what level of services the Student might require in a public school setting. But, they were quick to testify that the mandates were inappropriate. Given that the Parents were ostensibly seeking a public school placement for the Student, their refusal to help the CSE develop appropriate recommendations for the Student flies in the face of the “. . . cooperative process . . .” Schaffer, @ 53
I note that the Parent did not inform the CSE team that the Student was receiving additional services at home, nor did she ask them to consider recommending home services for the Student, because she “didn’t see the purpose of it.” (Tr. p. 1337) Similarly, The Clinical Director testified that the Student required a program at school in addition to home , but admitted that no one requested that the CSE consider such a program. (Tr. p. 1073) Full cooperation with the CSE would dictate that Parents provide the CSE with all the information needed to recommend a program that is appropriate for the Student. Given that the Parent and the staff feel strongly that the Student requires home services in addition to her placement at the , their failure to seek such a recommendation from the CSE is questionable. I accept the District argument that the equities do not favor the Parent entirely and therefore reduce the reimbursement by twenty five (25) percent.
It is, therefore, ORDERED
That the District reimburse the Parents for 75 percent of tuition upon the presentation of properly receipted bills for:
1) The unilateral placement at the private school;
2) 15 hours of weekly home-based services;
3) 2 hours of weekly supervision/consulting services;
4) 3 X thirty minutes of weekly services; and
5) 40 hours weekly of home-based services for the time before and after the summer program;
6) The District is responsible for the full cost of transporting the Student to and from the during the 2011- 2012 school year. Dated: July 24, 2012 Corrected Date: July 25, 2012 (April 4, 2012 Hearing Date Included in the Decision)
______________________________
MARTIN J. KEHOE, III, ESQ.
Impartial Hearing Officer
MJK:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request, 8/26/11, 4 pp. B Amended Findings of Fact and Decision, 11/23/08, 11 pp. C Due Process Response, 9/16/11, 3 pp. D Letter from to and Fax Transmission
Confirmation, 6/29/09, 2 pp. E D75 Placement Office Referral form, Undated, 2 pp. F Letter from to and Fax Transmission Confirmation,
7/7/11, 2 pp. G Letter from to and Fax Transmission Confirmation,
8/18/11, 2 pp. H Home Language Survey, 5/29/03, 1 p. I Individualized Education Program, 4/29/10, 15 pp. K Physical therapy Progress Report, 5/13/11, 2 pp. L Educational Annual Review, 6/2011, 3 pp. M Occupational Therapy Annual Review, 6/2011, 4 pp. N Progress Report, 6/16/11, 5 pp. O Physical Therapy Evaluation, 9/21/11, 3 pp. P Home Program Annual Report, 11/27/11, 3 pp. Q Physical Therapy Progress Report, 11/2011, 2 pp. R Curriculum Overview, Undated, 2 pp. S Class Schedule, Undated, 1 p. T Enrollment Contract, 8/31/11, 4 pp. U Cancelled Checks for , Various Dates, 4 pp. V Invoices and Cancelled Checks for ABA SEIT Services, Various Dates, 14 p W Minutes of CSE Meeting, 3/15/11, 2 pp. X CSE Access Log, 5/16/11 Y Detail Placement Inquiry Screen, 1/19/12, 1 p. Z Quarterly Progress Report, 2011-2012, 11 pp. AA protocol/ Assessment, Undated, 2 pp.
BB ABA Program, Undated, 1 p. CC Program Description, Undated, 8 pp. DD List of Providers, Undated, 1 p. EE VB-MAPP, Undated, 1 p. FF Parent Brochure/Newsletters, Undated, 11 pp. GG Cancelled Checks for , Various Dates, 2 pp. HH Invoices and Cancelled Checks for ABA SEIT Services, Various Dates, 8 pp. II Class Schedule for , 2011, 1 p. JJ Withdrawn KK Cancelled Checks for , 2/2/12, 1 p. LL Invoices and Cancelled Checks for ABA SEIT Services, Various Dates, 8 pp. MM Functional Behavioral Assessment/Behavioral Intervention Plans Policy
Memorandum, 5/2011, 4 pp. NN Quarterly Progress Reports: 2nd Quarter, 2011-2012, 16 pp. OO Final Notice of Recommendation, 6/15/11, 1 p.
DEPARTMENT OF EDUCATION
1 Due Process Response, 9/16/11, 3 pp. 2 IEP, 5/12/11, 13 pp. 3 Bilingual Psycho-Educational Evaluation, 4/4/11, 4 pp. 4 Classroom Observation, 10/14/10, 1 p. 5 Social History Update, 5/12/11, 1 p. 6 Functional Behavior Assessment, 5/12/11, 1 p. 7 Quarterly Report-The School, 1/2011, 2 pp. 8 Quarterly Review of IEP Goals (Occupational Therapy)-The ,
3/2011, 2 pp. 9 Quarterly Review of IEP Goals- ,
3/31/11, 2 pp. 10 Student Physical Therapy Progress Report, 5/13/11, 2 pp. 11 Bilingual Evaluation, 9/6/07, 4 pp. 12 Final Notice of Recommendation, 6/15/11, 1 p. 13 Signed Subpoenas, 11/11/11, 4 pp..
Footnotes
[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including , , including services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
[2] A classroom observation is, under New York law, required to be included as part of the evaluation whenever a reevaluation is conducted. (8 N.Y.C.R.R. § 200.4(b)(1)(iv))
[20] U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- `` (I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . . (iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement— (I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and (II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.