New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 2, 2011

January 5, 2012

Actual Record Closed Date: March 20, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2011

Advocate — Parents

Department Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2012

Advocate — Parents

Mother — Parents

Parents

Department Designee — DOE

Special Ed Teacher- - — DOE

On November 2, 2011, and January 5, 2012, I conducted hearings pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. section 1415 (f)(3) regarding a special education program for students with a disability, New York City Impartial Hearing Case Number . The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The Parents submitted a request for an impartial hearing, through their advocate on September 8, 2011. At the hearing, the Department of Education, hereinafter referred to as “The Department” was represented by its Department Designee, , and the Parent was represented by its advocate .

BACKGROUND

The student, is currently a ( ) year old who is with a of “ ”. On May 27, 2009, an Individualized Education Program (IEP) meeting was held, wherein the Committee on Special Education, (CSE) met to discuss the educational needs and to develop an (IEP) for the child, hereinafter known as “ ”. At the meeting, it was noted that received hours a week of home based hereinafter referred to as ” services utilizing the principals of ( however, at the meeting the Parent was told that only school based department services would be discussed and considered, and the 5/27/11 IEP dialed to include hours of that the child was receiving. Additionally, the Parent wished to discuss providing her child with a month school year, which she was previously receiving and was told that only students within District were eligible for month services and the IEP failed to include same.

Accordingly, the parent is seeking that her child’s IEP be amended as follows, to include:

a. hours a week of individualized services paid at the rate of $ an hour which may be provided in the home or school setting as needed.

b. month services, in order to prevent regression of skills, including a specialized educational classroom setting, or related services in services.

THE PARENT’S POSITION

As stated above, the Parent maintains that the CSE failed to consider the child’s educational needs and failed to develop an IEP tailored to ’s individual and unique needs and instead, adhered to standard policy, custom and or practice.

Additionally, the Parents maintained that attends a full day special education class in a setting in a community school, and has a full time health professional and receives related services including x x , x x and x x . Additionally, continues to receive hours a week of services pursuant to my pendency order.

Since September 2011, has been attending , and although her parent agrees to the child’s continuation in her present program in the community school, she maintains as stated above, that the Department failed to develop an IEP tailored to ’s individual and unique needs by refusing to discuss and consider a month program and a continuation of home based services.

THE DEPARTMENT’S POSITION

The Department maintained that the IEP was tailored to provide with a FAPE.

THE PARENT’S CASE

Ms. recited that her qualifications included a Masters degree from . University in teaching children with special needs and is a Board Certified

T. 37) and stated that she worked closely with both Ms. and 's during her visits to the school (Tr.40).

The witness described in class including , on the and her . Additionally, she stated that the child attempts to tasks by “ ” (T. 41). In response to these , Ms. stated that she would utilize prompts to her on . Ms, also described in detail all domains of learning, that are worked on during sessions (Tr. 44).

The witness testified that is now able to her and usually using …….but that she has begun using full sentences. She described that as having with other . Further, she and the paraprofessional work to implement what is taught to in their sessions. (Tr. 47), including , with and turn . She also works with the child to develop skills, including , , and (Tr. 49).

Ms. reported that she uses the principals of as a primary teaching methodology with (Tr. 38, 41, 42, 45, 50). Both Ms. and Mrs. described 's that with her of skills (Tr. 27, 28, 41). Ms. also stated that has demonstrated regression and that following breaks in services she has lost skills that she was previously able to exhibit (Tr. 51-53).

Upon cross examination, Ms. stated that some of her strategies involve down tasks into steps…..and teaching a step at a time…..providing a system when needed, starting with full and and them out as required…..(T. 56 ). She implements schedules as the child often the all the time….(T. 57.)

The last witness to testify was the Parent who stated who described her child as and that she in and . She also stated her child is in math and can and that she is “ with the that her child is ” (trans. 25). Her areas of concern mostly involve , as she is to tell her when she is , when she wants to , and the for (trans. 25). Upon further questioning of the witness, she stated that her child receives services, every day from and that she communicates with the teacher on a daily basis.

The Parent stated that she attended her child’s IEP meeting in May 2011 at that the attendees were her advocate and a teacher, Mr. (T.28). She had discussions regarding her child’s services and was told that it cannot be discussed and or provided. (T.29). The witness also stated that none of the related service providers were at the meeting; however she believed the notes were submitted (trans. 31).

THE DEPARTMENT’S CASE

, a Special Ed Teacher testified on behalf of the Department and stated that she has been employed for years and that is a student in her class. She stated the child has made “ ” and that she focuses with on academics, including reading, writing, science, social studies and math (trans. 17).

.She described the process which she referred to as “ ” wherein she does weekly assessments. She stated that she is familiar with the “ and or ” and that incorporates in into her instruction. More particularly, in the reading program, the staff prints out stories for and implements “ and ”. She testified that prefers to (trans. 18). Lastly, when asked if the strategies being implemented through the curriculum enable the child to learn, she stated “somewhat”. (T.18)

Upon cross examination, the witness stated that she is familiar with the child’s

Ms. and described her as “ ”; she has met her on various occasions and has provided her with “a few pointers”. Additionally, they write to each other daily in a communication log. The witness also stated that the instructed her in how to provide a level of comfort so that would sit in a group with other children. Ms. assisted in providing information on how to implement the ( ) and stated that it was helpful. Additionally, the witness testified that the also requested that the token reward system be implemented and that a token board was set up for the child, which was successful (trans. 20).

Ms. stated that when the comes into her classroom, she also works with the paraprofessionals in the classroom and that she believed it would be beneficial for to have Ms. to continue in providing services in her classroom. (trans. 22). She concluded and stated that the child has but…….she’s not doing it…..the majority of our academics, she’s not doing it , definitely with a lot of support. (T 23)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U. S.C .section 1400-1482) ensure-that students with disabilities have available to them a FAPE' see Schaffer v. Weast, 126 S. Ct. 528.531 [2005]; Bd. Of Education v, 'Rowley 458 S.CT. 176, 179-81 [1982]; Frank v. Bd. Of Educ. 459 F. 3d 356371 92d 2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd' ; FR Section 200-347. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5], CFR section 300.13 [a] [2][i].. 200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walkman v. Fla. Union Free School Dist. 142 F. 3d 119. 132[2d cir. 1998]

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department 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 Department of Education were inadequate or inappropriate, 2, the services selected by the parents were appropriate and 3. equitable considerations support the parent's claims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist, v. Carter. 510U.S:7 [1993]: Cerra v. Pawling Center. School Dist.

427F. 3d 186, 192 ,[2d Cir. 2005] "reimbursement merely requires a district to belatedly pay expenses; that it should have paid all along and would have borne in the first instance had developed a proper IEP.

Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429: Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 9334; Application of a Child with a Disability. Appeal No. 95-57, in order to meet that burden, the parent must show that the services were "proper under the act", (IDEA) that the private school-offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal NO. 94-29). The test for the parent's private placement is that it is appropriate not that it is-perfect (M.S. v Bd. Of Educ. 231 F. 3d 96, IQ5 [2d Cir. 2000] cert. denied 532 U.S. 9422001.

The final criterion of an award of tuition reimbursement is that the petitioners' claim .is supported by equitable considerations (Carmel Centre Sch. Dist. V.V. P. 373 F.Supp. 2d 402; 4]6 [S.D.N.Y. 2005] affd.2006 W]. 23341 4Q (2d cir. 2096);' Frank 0..459 F. 3d at 363-64). Equitable considerations are relevant to fashion relief under theIDEA (Burlington 471 U.S. at 374; Mrs. C: 1'. Voluntown Bd. Of Educ. 226 F. 3d 68 [2d Cir. 2000]; see Carter. 510 U.S. at 16 [ ng that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required) such considerations include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions and like matters (Wolfe v Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530. 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept, of Educ. 736 F. 2ds at773 , 801.-02[lst Cir...1984] aff;1471U.s: 359·[1985]:with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner. fail to make their child available for evaluation by the district or upon fining of Unreasonableness with respect other action taken by the parents 20 D.S.C. section 1412 (a)(JO)(C)(iii) Warren G. v Cumbetland Co. Sc. Dist. 190 F. 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Educ. Appeal No. 04-102: Application of the Bd. Of Educ. Appeal No. 04-026) However. reimbursement may not be denied or reduced for failure to provide such ce where compliance with the ce required would likely result in harm 20 U. S.C. 14122 (a) (C) (iv)

(I) (cc) (II) (bb)"

Parents maintain that the Department failed to offer a FAPE that was "reasonably calculated to meaningfully address 's unique and individual needs for related services supports, which would amply conform to the second circuits "reasonably calculated test for Prong II; and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III) Accordingly the Parents maintains that, for the 2011-2012 they met the recognized test for Burlington/Carter reimbursement relief. A Department of Education (DOE) Committee on Special Education (CSE) is charged with providing students a Free and Appropriate Public Education (FAPE). A FAPE is comprised of full evaluations, an informed review where the parent is given a meaningful opportunity to participate. an appropriate classification, an appropriate program recommendation in the least restrictive environment, and a timely and appropriate sit offer, 34 C.F.R. sections 300.110.

I will not repeat the details of evidence where but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above and I have considered the testimony of all of the witnesses who have testified. The evidence has established that the Department adhered to a policy, wherein they refused to discuss and or consider a month program and home based services, which were part of her prior IEP and requires the same services. I find that the parents have met their burden in proving that the services that they have unilaterally chosen for are appropriate The testimony from witnesses provided information about the methodology employed by the and the testimony also established how the services provided to meet her unique identified needs. The Parents have established that the implemented services were appropriate and that the child is making meaningful educational progress as stated more particularly above.

Further, the evidence and testimony in this hearing have established that by providing with hours per week of services both at school and home allowed her to make progress…… "[e]ducational 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, 189)..

Equitable considerations for the fact finder to consider in determining whether reimbursement and-related relief is appropriate "include the parties" compliance or non compliance with state and federal regulations pending review, the reasonableness of the parties' positions and like matters.

As the State Review Officer has expressly recognized in the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP. Equitable considerations generally support a claim of tuition reimbursement. See Appeal No. 05-087 (referencing Application of the-Board of Educ. Appeal No. 05-030; Application of the Board of Educ. Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-Q49).

's Parents complied with every request for evaluation or assessment made, acted reasonably, and cooperated at every stage. Accordingly the Prong III equities amply support the parents.

Regarding the Parent's request a month school year to added to the IEP, in order for a child to be eligible for same, it must be established in accordance with the criteria as set forth in 8 NYCRR 200.6(j)91). The relevant portion of that regulation reads as follows:

(j) twelve month special service and or program. (1) Eligibility for students for month services and or programs. Students will be considered for month special services and or program in accordance with their needs to prevent substantial regression, if they are:

(v) Students……..who, because of their disabilities, exhibit the need for a month special service and or program provided in a structured learning environment of up to months duration in order to prevent substantial regression as determined by the Committee on Special Education. The term “substantial regression” is defined by the regulations of the Commissioner of Education to mean:

A student’s inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require as inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.

The record established as per Ms. ’s testimony that has “regression” when there is no school for a period of time. More particularly, she stated that … (interposing)….oh yes [s]he loses a lot of skills…..[l]ike recently we had a week break……yesterday was my first session after the break with her[ ] …..I went over the already mastered programs, social questions, function of objects and she wasn’t able to respond to all of them.

I now turn to the issue of the impartial hearing officer remanding the matter back to the CSE to change the IEP. Federal Regulations require that school districts ensure that a continuum of alternate placements be available to meet the needs of students with disabilities for special education and related services. (34 C.F.R. 300.115; see 8 NYCRR 200,6). Based upon the evidence I am remanding this matter back to the CSE to change the Childs program regarding services to be provided on a month basis, for hours per week to be paid at the rate of $ per hour. For all the foregoing reasons, I award the following, as per attached directives. Dated: March 15, 2012

Impartial Hearing Officer

PLEASE TAKE CE

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 ce 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 ce 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

Parents

No. Dates Description # Pages

A 9/8/11 Demand For Due Process and Pendency 2

B 1/19/11 Findings Of Fact And Decision 11

By Impartial Hearing Officer

, Esq.

C 5/27/11 IEP Minutes 1

D 11/15/11 Quarterly Report Report 3

Department of Education

1. 5/18/11 IEP 24

2. 9/20/11 1

3. 9/9/11 1

4. 09/2011 1

5. 09/2011 1

6. 10/28/11 Progress Report 1

7. 12/20/11 Unit 1 Test Recording Form 1

8. 12/15/11 Progress Report 1