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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: January 19, 2012
March 21, 2012
March 26, 2012
Actual Record Closed Date: June 26, 2012
Hearing Officer: Ellen Abberbock, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2012
Attorney — Student
Parent — Student
Attorney — DOE
Teacher (via phone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 21, 2012
Attorney — Student
Parent — Student
Attorney — DOE
School Psychologist (via phone) — DOE
Teacher (via phone) — DOE
Assistant Principal (via phone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 26, 2012
Attorney — Student
Parent — Student
Assistant Director of Special Education at Lang School (via phone) — Student
Attorney — DOE
This hearing was requested on September 14th, 2011 by Jaime Chluspa, Esq. on behalf of the Parent of the Student. The hearing was requested pursuant to Part 200 of the Regulations of the Commissioner of Education. The Parent maintains that the Department of Education of the City of New York (DOE) failed to provide the Student with a Free Appropriate Education (FAPE) for the 2011-2012 school year, on substantive and procedural grounds as required by the Individuals with Disabilities Education Improvement Act (IDEIA). The Parent seeks tuition reimbursement for the cost of the Student to attend the Lang School for the 2011-2012 school year where the Parent unilaterally placed the Student.
On September 15th, 2011 I was appointed by the DOE to hear the matter.
Hearings were held on January 19, March 21, and March 26, 2012 pursuant to the IDEIA at 20 U.S. C. Section 1415 (f). Attached to the record and this decision are lists of the documents received into evidence.
BACKGROUND
Student is a who was in the for the 2011-2012 school year whose classification is (Exhibit C-1).
On December 21, 2010 the Student was observed in the classroom setting. The observation noted that in a class of five (5) students and two (2) teachers the Student frequently had to get out of the seat and had problems doing the work but did not disrupt the class (Exhibit E, Transcript at page 351).
On April 7, 2011 the Parent signed a contract with the in order to reserve a place for the Student at the (Exhibit L).
On May 16, 2011 a Evaluation Report was done. The report notes that the Student’s attention and concentration were variable and that the Student was at times overwhelmed by (Exhibit F, Transcript at page 351).
On June 13, 2011 the Committee on Special Education met to develop an Individualized Education Plan (IEP). The IEP recommended an Integrated Co-Teaching (ICT) class at a ratio of transitional paraprofessional, occupational therapy as a “pushin” in classroom service at a ratio 3X30:1, therapy as a “push-in” in classroom service at a ratio of 1X30:1and 1X30:3,and counseling at a ratio of 1X30:1and 1X30:3(Exhibit C-1 & C-14,Transcript at pages 8,9 and 10).
On July 11, 2011 a Final Notice of Recommendation recommending placement at public school was sent to the Parent (Exhibit G).
On July 28, 2011 the Parent sent a letter to the DOE expressing their disaffection with the public school placement in view of the fact that the Parent had requested a private school placement. The letter requested a further meeting to discuss the placement issue (Exhibit H).
On August 24, 2011 the Parent sent a notice to the DOE of their intent to unilaterally place the Student at the and requested transportation for the Student (Exhibit B)
On September 14, 2011 the Parent filed a request for an Impartial Hearing (Exhibit A).
POSITION OF THE PARTIES
School District’s Position
The DOE maintains that a FAPE was provided for the Student for the 2011-2012 school year (Transcript at page 359).
The DOE maintains that the June 13, 2011 IEP and resulting recommended placement at public school were appropriate to meet the Student’s special education needs (Transcript at pages 8, 9 and 365).
The DOE maintains that the recommended placement was the Least Restrictive Environment (LRE) for the Student (Transcript at page 362).
The DOE maintains that the Student’s placement at the was not appropriate as it is too restrictive and does not provide appropriate peer interaction (Transcript at pages 9, 365 and 366).
The DOE maintains that the Student is not receiving the mandated at the School and that the formal testing done by the was not accessible to the DOE (Transcript at page 367).
The DOE maintains that the equities do not support the Parent’s claim for tuition reimbursement as the Parent had already signed a contract with the prior to the IEP meeting (Transcript at page 9 and 367, Exhibit L).
The DOE maintains that the Parent did not provide the required ten day notice of unilateral placement (Transcript at pages 369 and 370).
Parent’s Position
The Parent maintains that the DOE failed to offer the Student a FAPE for the 2011-2012 school year (Transcript at pages 10 and 348).
The Parent maintains that the IEP was not reasonably calculated to enable the Student o receive educational benefits (Transcripts at page 351).
The Parent maintains that the general education teacher on the IEP team was not qualified to serve on the IEP team as a general education teacher (Exhibit A, Transcript page 11).
The Parent maintains that the IEP created did not sufficiently address the Student’s (Transcript page 11) and extreme problems with writing (Exhibit A).
The Parent maintains that the IEP goals are insufficient to meet the Student’s needs and are overly vague (Exhibit A).
The Parent maintains that they were denied an opportunity for meaningful participation in the IEP review (Exhibit A, Transcript pages 11,349 and 350).
The Parent maintains that the Integrated Co-Teaching (ICT) program recommended for the Student is inappropriate as it does not provide the Student with the necessary and therapeutic milieu (Exhibit A, Transcript pages 12,350,353 and 354).
The Parent maintains that the ICT program does not provide the Student with the individualized special education needed to address the Student’s writing delays which are three grades below the Student’s grade level (Exhibit A).
The Parent’s maintain that the Student’s placement at the is appropriate and providing educational benefit and progress to the Student (Transcript at page 354).
The Parent maintains there are no equitable considerations which would bar tuition reimbursement (Transcript at pages 13, 349 and 356).
Testimony and Evidence Presented at Hearing
The first witness called by the DOE was , special education teacher at M.S. 442. Ms. appeared by phone. Ms. testified that she is a grade ICT teacher teaching English at MS 442 (Transcript at pages 15, 16 and 17). Ms. testified that she also teaches a once a week forty five (45) minute advisory class in which she reviews , skills on how to be a successful student and how to (Transcripts at pages 17, 18 and 40). Ms. stated that she assumed “ ” meant people’s , how they get their work done, how they function in their daily lives and that she covers these areas in her advisory class (Transcript at page 18). Ms. stated that there are no more than twelve students with IEP’s in each of her classes (Transcript at page 19). Ms. testified that she does reading assessments along with daily assessment of students’ skills and conferencing with students to set goals. Formal state testing assessments, reading assessments, tests and quizzes are also done (Transcript at pages 19 and 20).
Ms. testified that in the ICT class they usually have a whole group ten minute mini-lesson and then each teacher will take a smaller group and there will also be independent groups to practice the skill taught in the mini lesson (Transcript at pages 20 and 21). There are three levels for the independent work “walk”, “jog”, and “run” with “walk” being the least difficult work learned at a slower pace and “run” being the most challenging work (Transcript at pages 21 and 22). Ms. testified that she provides differentiated instruction with the IEP students who read on a fourth to sixth grade level (Transcripts at pages 22 and 23). Ms. stated that seating in her classroom is not permanent but changes based on partnership where students working on the same skills will sit together (Transcript at page 24). Ms. testified that she uses multisensory tools in her class such as SMART Boards, visual aids, discussions, and singing to learn about poetry (Transcript at pages 25 and 26).
Ms. stated that she has worked with students who were lacking theme development, text organization and errors in grammar and syntax, but did not know what the term “polity” meant (Transcript at pages 26 and 27). Ms. stated that to address the Student’s writing issues she would use graphic organizers, such as a concept web or “hamburger” which gives the different layers of an essay, reviewing transition words and using visual images (Transcript at pages 27 and 28). Ms. stated that she believes that these techniques will help reduce the about writing because it would break writing down into small steps (Transcript at page 29). Ms. stated that she would work on the Student’s by having the Student work on context clues, fill-ins with what word would fit (Transcript at page 30). Ms. stated that if the Student got bored with the work she would give her more challenging work even if it was above the work listed in the IEP (Transcript at pages 30 and 31).
Ms. testified that she shows the teachers the work the students are doing and she learns about the student’s speech and language progress from the IEP. Ms. says that she informally talks with about students. Ms. testified that she works with the school counselor and brings in the when a student needs help and has worked with the counselor on developing for students (Transcripts at page 32 and 33). Ms. Green stated that there is an individual for all students in her class in that when a student does something right they get a B-Buck to use in the school store. There is also a class-wide behavioral plan where if the whole class acts well they will get a point and when the whole class gets enough points they will get something special like more time in the school yard or a bagel breakfast (Transcript at page 34).
Ms. testified that she would address the to by first having the Student work with one other student with a teacher checking on them (Transcript at pages 35 and 36). Ms. would address the by taking the Student outside the classroom and trying to calm the Student down and figure out what (Transcript at page 37). Ms. stated that the Student could be given preferential seating during the mini lessons (Transcript at page 37). Ms. stated that based on the Student’s IEP Ms. ’s classroom could meet the academic, of the Student (Transcript at page 38). Ms. testified that there is , and available at her school but she did not know if the were available on a “push-in” basis (Transcript at pages 38 and 39).
On cross examination Ms. testified that none of the Student’s in her class have a one to one para-professional or behavior intervention plan (Transcript at page 43). Ms. stated that the lowest level of students without IEP’s in her class read at a third grade level and the highest level read at is a twelfth grade level (Transcript at page 45). Ms. testified that in a ninety (90) minute period she could probably spend five to seven minutes on a one to one instruction level with each student (Transcript at page 46) and that the individual groups consist of four to eight students (Transcript at page 47). Ms. testified that two general education students read at a 12.9 grade level like the Student (Transcript at page 47). Ms. testified that there are two computers in her classroom and a traveling computer cart (Transcript at page 48). Ms. stated that the students in her class interact socially independently (Transcript at page 49).
Ms. stated that she had not heard of the term “twice exceptional” but she had once taught a student who was in the superior range for IQ but also had learning disabilities but that she currently did not have a student with that type of profile in her class (Transcript at page 49). Ms. stated she would address the Student’s needs for “sensory breaks to address frustration” (Exhibit C-5) by allowing the Student to take a walk, take a breather, or use the “chill out” chair in the quiet area of the classroom, but there was no place outside the classroom for the Student to go for a break (Transcript at page 50). Ms. testified that no are listed on the IEP’s of any of the students in her class (Transcript at page 51). Ms. stated that none of the students in her class receive related services on a “push-in” basis and none of her student’s IEP’s mandate “push-in” services (Transcript at page 51 and 52).
Ms. testified that she believes a transitional paraprofessional helps the student go from area to area and that while her school had paraprofessionals she was not sure of their exact titles (Transcript at page 52). Ms. stated that she has never met the Student and first saw the Student’s IEP in December 2011 (Transcript at pages 52 and 53). Ms. stated that the writing program her class uses comes from Teacher’s College (Transcript at page 53).
Ms. testified on re-direct that she addresses the wide range of reading levels in her class by having different students do different activities with the higher range students doing more strenuous and in depth activities (Transcript at page 54). Ms. testified that the student groupings change based on what she feels the students need to work on and how she can help to push them further (Transcript at pages 54 and 55). Ms. stated that she would work on the Student’s socialization skills by rewarding positive behavior and use turn and talk where you just turn and talk to the person next to you (Transcript at page 55). Ms. stated that the students use the computers for research, independent work and to type assignments if they have difficulty writing (Transcript at page 56).
The second witness called by DOE was Ms. a special education teacher assigned to Committee on Special Education (CSE) 9 who appeared by telephone. Ms. e testified that she participated in the Student’s June 13, 2011 IEP meeting as a special education teacher and district representative (Transcript at page 69). Ms. stated that present at the IEP meeting were school psychologist, , the Student’s mom, a teacher from the , general education teacher, , and parent member Sandra Morabito (Transcript at page 69, Exhibit C-2). The documents reviewed at the IEP meeting were the social history, the psycho-educational evaluation, the Fall/Winter report and the observation report done by Ms. (Transcript at page 70, See Exhibit’s E, F and 1).
Ms. testified that in regards to the Student’s academic performance on the WIAT-III the Student scored in the 79th percentile in word reading putting the Student at a grade level (Transcript at page 127) and in reading comprehension the Student scored in the 98th percentile also putting the Student at a grade level which is above high school level. In spelling the Student scored in the percentile. However, in essay composition the Student only scored in the percentile which is a level (Transcripts at pages 73 and 74, Exhibit C-3). In numerical calculations the Student scored in the 45th percentile or at a 5.2 grade level (Transcript at page 74, Exhibit C-3). Ms. Ye testified that the Student’s difficulty with essay writing as indicated by the WIAT-III test results and the Student’s academic management goal needs as written by the psychologist who tested the Student were discussed at the IEP meeting (Transcript at page and 81, Exhibit C-3).
Ms. testified that the Student’s classroom teacher agreed to the academic management needs developed at the IEP meeting (Transcript at page 76) although it was discovered at the Impartial Hearing that the Parent never received the page of the IEP which listed the academic management needs developed by the IEP team (Transcript at pages 76 thru 79 and 325, See Exhibit 2). Ms. testified that the Student’s actual performance in school was discussed with input from the Student’s teacher and Parent (Transcript at page 81). The Student’s teacher noted that the Student’s reading comprehension was on a fifth grade level and the Student had difficulties with implied meanings, author’s perspectives, and inferential skills (Transcript at page 81). The Student was estimated to be on a beginning level for math computation (Transcript at page 82). Ms stated that the IEP team discussed that the Student’s essay writing skills was the Student’s main academic deficit area and the Student’s handwriting was also below age expectancy (Transcript at page 82, Exhibit 2).
Ms. testified that both the Student’s classroom teacher, Ms. and the Parent agreed that that the Student had an academic management need for redirection meaning to be brought back to the topic the class is working on and scaffolding meaning to break down and explain very explicitly the topic being taught (Transcript at pages 83 and 84). Ms. stated that the Student had an academic management need for or reward system to provide positive reinforcement in order to address the Student’s mild oppositional disorder in which the Student ignores the teacher’s direction (Transcript at page 84, Exhibit 2). Ms. stated that the Student’s needs for breaks to address the Student’s sensory overload was discussed at the IEP meeting by the Student’s classroom teacher and then listed as an academic management need (Transcript at page 85). Ms. stated that the Student’s teacher, Ms. recommended that be listed as an academic management need in order to help the Student learn to read what’s in between the lines (Transcript at page 86). Graphic organizers and teacher made templates to help the Student organize a written response were listed as an academic management need in order to address the Student’s weak executive functioning and organizational skills (Transcript at page 86).
Ms. testified that the Student’s social and emotional needs were discussed with the Parent and Ms. at the IEP meeting including the with understanding social cues, engaging in spontaneous interaction, and a tendency towards frustration (Transcript at pages 87 and 88). Ms. stated that she never observed the Student outbursts rather the Student often ignores the teacher. The Student’s tendency to outbursts was listed on the IEP in order to alert the new teacher what could happen (Transcript at pages 88 and 89, Exhibit C-5). The Student’s health and physical development was also discussed at the IEP meeting including the Student’s diagnosis of , and which warrant the Student’s need for (Transcript at pages 89 and 303, Exhibit C-6). Ms. stated that the two writing goals were written by the who tested the Student and they were written to address the Student’s weak essay writing skills. The Parent and classroom teacher agreed to these goals (Transcript at pages 90 and 91, Exhibit C-7). Ms. stated that after discussion at the IEP meeting she developed the goal concerning the Student’s inferential reading skills and the Parent and classroom teacher agreed to this goal (Transcript at page 92, Exhibit C-8). Ms. also stated that she developed the math word problem solving skill goal and that the Parent and classroom teacher agreed to this goal (Transcript at page 93, Exhibit C-8).
Ms. stated that the school psychologist developed the Student’s counseling and social skills goal after speaking with the Parent and classroom teacher and that the Parent and classroom teacher agreed to this goal and its short term objectives (Transcript at page (Transcript at pages 93 and 94, Exhibit C-9). Ms. testified that the school psychologist drafted the goal for the Student to have a transitional paraprofessional in order to transition successfully from private school to public school and that the paraprofessional was to address the Student’s (Transcripts at pages 95 and 96, Exhibit C-9). Ms. stated that the IEP team, Parent and classroom teacher developed the Student’s and goals which focus on the skills (Transcript at page 97, Exhibit C-10). Ms. also stated that the occupational goal to improve the Student’s organizational skills was as a result of the discussion between the IEP team, Parent and classroom teacher (Transcript at page 97, Exhibit C-10). Ms. stated that the occupational goals concerning the Student’s grapho motor skills and sentence writing were developed by the with input from the Parent and classroom teacher (Transcript at page 98, Exhibit C-11). The occupational goals as they relate to sensory processing and the Student’s writing were developed after discussion with the IEP team to address the Student’s major deficit area of organizational skills and writing (Transcript at page 99, Exhibit C-11).
Ms. stated that to address the Parent’s concern that the to much from the classroom the IEP team recommended that counseling and a transitional paraprofessional be implemented (Transcript at page 100, Exhibit C-14). Ms. Ye testified that in her opinion an ICT classroom was appropriate for the Student for the 2011-2012 school year because the Student is bright and able to function in a general education setting but also needs access to a full time special education teacher who understands the Student’s and . In addition the recommended transitional paraprofessional would provide social and emotional support for the Student (Transcript at pages 100 to 101). Ms. stated that she knows that Ms. is a certified general education teacher (Transcript at page 102).
On cross-examination Ms. testified that her observation of the Student took place on December 21st, 2010 and the IEP team met on June 13th, 2011 and that there was no formal official observation done closer to the date of the IEP meeting (Transcript at page 103). Ms. Ye stated that during her approximately one hour classroom observation in which there were five students and two adults one of whom was a substitute teacher (Transcript at page 128) the Student got out of the Student’s seat a number of times but not in a manner that was disruptive to the class (Transcript at pages 103 to 105). Ms. stated that the IEP team was aware of the staffing ratio at the (Transcript at page 106). Ms. stated that the school psychologist who tested the Student did not participate in the IEP meeting (Transcript at page 107). Ms. testified that the difference between the teacher’s observation that the Student was at a fifth grade reading level and the Student’s standardized test score showing a twelfth grade reading level was discussed at the IEP meeting (Transcript at pages 107 and 108). Ms. stated that at the IEP meeting she served as the district representative and the special education teacher, but she has not actually been a classroom teacher since 2007 when she taught high school students in a resource room (Transcript at pages 109 to 110). Ms. testified that neither she nor the general education teacher ever worked at in Brooklyn and Ms. was not familiar with how runs their ICT program (Transcript at pages 110 and 111).
Ms. testified that she did not recall any particular thing that the parent member did at the IEP meeting (Transcript at page 112). Ms. stated that the IEP team did not answer the Parent’s question regarding the IEP team’s experience with “twice exceptional children” because “of course” the IEP team knew what “twice exceptional children” meant as they all were involved in special education (Transcript at page 112, See Exhibit D). Ms. testified that the Student’s were noted on the IEP and the psychoeducational evaluation, and discussed at the IEP meeting, but no specific IEP goal mentioned anxiety because was viewed as stemming from the Student’s other weaknesses (Transcript at pages 114 to 117). Ms. testified that the goals developed by the school psychologist who tested the Student were read aloud to the IEP team and a modification was made based on discussion, but Ms. could not remember what the specific modification that was made (Transcript at page 118, See Exhibit D). Ms. Ye testified that the Student did not have a paraprofessional at the (Transcript at page 119).
Ms. testified that the Parent did express concern that an ICT class with thirty
(30) students twelve (12) of whom had IEP’s would be too large for the Student and the IEP team responded by recommending the paraprofessional, although the IEP team did not know the exact qualifications of the paraprofessional who was to handle the Student’s transition to a larger class and social situations (Transcript at pages 119 to 120).
On re-direct Ms. testified that while she did not do a written observation of the Student between December 2010 and June 2011 she did see the Student in a math class and a chess class while observing other students in March 2011. Ms. remembers seeing the Student because she was the only girl in the class (Transcript at pages 122 and 125)). Ms. noticed that the Student exhibited in that she ignored the teacher but did not have a verbal or physical outburst and the chess teacher did not have a method for dealing with being ignored other than calling the Student’s name (Transcript at page 123). Ms. testified that during her official observation of the Student all of the other students were walking around and getting out of their seats (Transcript at page 124).
The third witness called by DOE was Ms. a sixth grade ICT special education math teacher at who appeared by telephone. Ms. stated that there are 19 children in her homeroom class known as class 601 and about half of the students are special education students and in the classes known as 602 and 603 there are 18 to 20 students with about half being special education students (Transcript at pages 134 to 135). Ms. testified that the classifications of the special education students in the three classes are learning (Transcript at pages 135 to 137). Ms. stated that she uses prompts such as timers in all her classes to assist those students with (Transcript at pages 137 and 138). Preferential seating is used in all three classes for students with behavior and motivation problems (Transcript at pages 138 and 139). Ms. stated that students in all three classes have problems with organization and these problems are addressed by keeping a very organized classroom where everything is in a certain spot and each student has notebooks and planners and checklists (Transcripts at pages 139 and 140).
Ms. testified that all three classes have a system in place where there is a class wide point system for and calls to parents after that disrupt the class from learning (Transcript at pages 140 and 141). Some students also have individual behavior modification plans for each day to earn points from each teacher in each class for the work the student is doing (Transcript at page 141). Ms. stated that students in her class also take breaks such as in (Transcript at page 142). Ms. testified that in all three classes she uses differentiated instruction such as small groups, manipulatives, and checklists. The classes also use a Smart Board (Transcript at pages 142 and 143). Ms. stated that students are assessed daily through class work and “exit slips” in which the students solve a problem on a piece of paper and hand it to the teacher before they leave. Those students who had problems doing the “exit slip” are placed in small group instruction the next day (Transcript at page 144). Ms. stated that one to one instruction is provided in her class “from time to time” (Transcript at page 145). Ms. noted that a may lead to (Transcript at page 145).
Ms. stated that she has worked with the school counselor and guidance counselor on plans for the students (Transcript at pages 146 and 147). Ms. stated that she has worked with students who in the classroom and in response she tries to redirect the student or work with them one on one for a few minutes in order to reengage the student (Transcript at page 147). Ms. stated that she is one of two teachers in the classroom and the other teacher is a general education teacher and sometimes they both teach the lesson and sometimes one teaches while the other works with small groups or both teachers will rotate around the student’s work stations (Transcript at page 148). Ms. noted that the small groups are created based on the student’s needs (Transcript at page 149). Ms. stated that she would address the Student’s problems with by having the Student join a group established by the guidance counselor for students who need help with social interaction and in the classroom all students are encouraged to interact with one another (Transcript at page 150,160 and 161).
Ms. has worked with students on math problem solving skills by having the students clarify the problem by underlining it, circling important information, working in groups to solve real life problems and providing challenge questions for the students who have mastered the skill (Transcript at page 151 and 154). Ms. stated that both she and the general education teacher work with both the special education students and the general education students (Transcript at page 152). Ms. stated that in her opinion the Student would have been appropriately placed in her math class as there were enough supports such as , , and the to assist the Student with her needs (Transcript at page 154).
On cross-examination Ms. testified that in the 601 class students function in math on a grade level in the 602 class students function on a grade math level and in the 603 class students function on a fourth through beyond high school math level (Transcript at pages 156 to 157). Ms. testified that sometimes students do get thrown off for a little bit when there is a disruption in the class (Transcript at pages 157 to 159). Ms. stated that in each class students are able to get a few minutes of individual (Transcript at page 159). Ms. stated that sometimes students in her class need teacher assistance to interact socially (Transcript at page 160). Ms. testified that sensory breaks are given in her class by having students stretch, walk down the hall or get a drink of water (Transcript at page 163). Ms. stated that she has not worked with students who have (Transcript at page 163). Ms. was unsure of what sensory materials mean (Transcript at page 164).
On redirect Ms. testified that the age range in her classes are eleven to twelve and that there is an occupational therapist at the school with whom Ms. has discussed executive functioning and organizational issues (Transcript at page 165). Ms. testified that if she did not know what was and it was listed on a student’s IEP she would ask her co-teacher, assistant principal ,director of special education or the occupational therapist about it so that the student’s sensory equipment needs did not go unaddressed (Transcript at page 166).
The fourth witness called by DOE was Ms. assistant principal at who appeared by telephone. Ms. stated that there are three ICT classes at (Transcript at page 171). In class 601 there are eighteen students with eight students being special education students and three students who receive Special Education Teacher Support Services (SETSS) (Transcript at pages 170 t0 171). In the 602 class there are twenty (20) students with nine special education students and two students who receive SETTS. In the 603 class there are eighteen students with nine special education students and two students who receive SETTS (Transcripts at pages 172 to 174). Ms. testified that , and language therapy and occupational therapy are all available at and that and occupational therapy can be provided on a “push-in” basis (Transcript at pages 175 and 176).
On cross examination Ms. testified that there about one hundred eighty two
(182) students in and that the building is shared with an elementary school that has three hundred students (Transcript at page 177). Ms. stated that the ICT classes change classes approximately four times per day (Transcript at page 178). Ms. noted that between seventy five (75) and ninety (90) students eat lunch in the first floor cafeteria at the same time (Transcript at pages 178 and 179). Ms. stated that she along with the principal and the parent coordinator determine which of the three ICT class the students will attend based on their IEP’s and the ratio of boys versus girls (Transcript at page 179 and 183). Ms. noted that if students needs change the classes can and have been regrouped (Transcript at page 183). Ms. stated that none of the students in the ICT classes currently receive occupational therapy on a “push-in” basis and she was unsure if any of the students receive on a “push-in” basis (Transcript at pages 179 and 180). Ms. stated that there are students in her school who have crisis management paraprofessionals (Transcript at page 180). On redirect Ms. testified that while the DOE provides the paraprofessionals, Ms. Mills interviews them to make sure they can meet the needs of the Student as stated on the IEP (Transcript at page 182).
After Ms. ’ testimony the DOE presented no further witnesses and rested its case (Transcript at page 184).
The Parent called as its first witness, Ms. , assistant director of special education at the , who appeared by telephone. Ms. testified that the is a private school that services children who are “twice exceptional” and that the students are serviced from a gifted perspective with and a special education perspective with work on skills in which the students are weak (Transcript at page 195). The services grades kindergarten through eighth has seventeen students and three separate classes grouped by chronological age (Transcript at page 196). The has five full time teachers, two assistant teachers, a music teacher, art teacher and gym teacher (Transcript at pages 196 and 197). The offers and . There are two teachers per class with one being a gifted educator and one a special educator and eight children per class (Transcript at page 197). The classes also receive daily “push-in” support from a (Transcript at page 199). The uses a multisensory approach to learning and differentiates lessons based on whether a student is a (Transcript at pages 200 to 201).
The uses a collaborative program solving approach to classroom management in which both sides of a dispute are talked out with an adult mediator and students learn to reframe choices for more successful outcomes both academically and socially (Transcript at pages 201 to 202). The creates an individualized for each student outside of the IEP with each student working on their own goals and accessing the curriculum at their high level with interventions appropriate for each student (Transcript at pages 203 and 204). There are weekly staff meetings in which curriculum and students are discussed. Parentteacher conferences are held twice per year and narrative based progress reports are issued twice per year (Transcript at page 205). The regularly performs formal assessments such as Orton-Gillingham and Woodcock-Johnson tests along with informal teacher observation and review of student’s portfolios (Transcript at pages 206 to 207).
Ms. testified that she participated in the Student’s IEP meeting on June 13, 2011. Ms. felt that an ICT class would not be appropriate for the Student because it would not give the Student enough access to special education services in a small classroom with adequate supports and scaffolding and there would be no access to a discrete therapeutic “push-in” program for the Student where the Student could receive individual therapy and then have the therapies put in practice in the classroom (Transcript at pages 209 and 266). Ms. testified that the Student is working on flexibility in her cognitive thinking to allow for shades of grey rather than discrete black and white thinking. The Student is also working on and being alert in the classroom in a positive and proactive manner. The Student is also working on in writing which cause (Transcript at page 210). The Student’s deficits are addressed by the classroom teachers through the use of visual supports, access to preferential seating, access to , pre-conferencing and pre-planning with the Student to review what needs to be done to complete the task, using graphic organizers, and supporting the Student in social interactions (Transcript at pages 211 and 212). Ms. day runs from 8:00 a.m. to 3:00 p.m. (Transcript at page 213).
Ms. testified that the Student is working at a high school level for encoding and decoding in reading skills but is on a middle school level for reading comprehension (Transcript at pages 215 and 216). Ms. stated that the Student is working on increasing the volume and frequency of written work (Transcript at page 216). The Student is functioning at a high school level in mathematics and receives tutoring in math because of the Student’s high level of functioning in math (Transcript at pages 220 and 225, 226and 246). Ms. stated that the Student receives counseling and occupational therapy (Transcript at page 224). The is provided on a “push-in” basis and provides graphomotor support, executive functioning and motor planning support and support to reduce anxiety (Transcript at page 228). Ms. testified that the rises in social situations where the Student does not comprehend what is happening and in academic situations where the Student feels the Student cannot be more successful (Transcript at page 229). When the the Student becomes very , and (Transcript at page 229).
Ms. stated that the Student tends to become meaning that the Student tends to pay too much attention to the non-essential part of a task and and in a particular nuance of a task which slows down the Student’s classroom performance (Transcript at pages 229 and 230). The teachers address the hyper-focusing by pre-planning with the Student how the task will be done, breaking the task into small parts with each part having a time limit, providing graphic organizers and checklists, and giving the Student sensory tools and sensory breaks (Transcript at page 231). Ms. noted that the Student has a at her desk to use when the Student needs to calm down and that the classroom is equipped with sensory break areas and the Student uses areas several times a week (Transcript at pages 232 and 233). Ms. testified that the Student needs a small class because the Student needs scaffolding and her support for her academics in order to complete tasks at a high academic level and not or . The Student also needs a lot of intervention in social interactions with her peers. The Student will when there are a lot of external stimuli (Transcript at page 235). Ms. stated that the Student receives a lot of attention because there are only seven students in the class with two teachers. This helps the Student and keeps the Student at a high interest level (Transcript at page 236).
Ms. stated that she has seen improvement in the Student. The Student’s ability to attend to non-preferred and teacher prescribed tasks has improved. The Student is producing higher level writing passages and relies less on checklists when proofreading her work (Transcript at page 276). The Student is better and does not need to take as many out-of-classroom breaks. The Student is connecting with the other students (Transcript at page 292). The Student has become more and is able to intake other people’s ideas (Transcript at pages 237, 238, 265 and 266).
On cross examination Ms. testified that there are seven students in the Student’s class one of whom is a female and this is the only other present at school lunch periods (Transcript at page 239, 240 and 254). Ms. testified that during the School day the Student only has an opportunity to interact with other students who have IEP’s (Transcript at page 244). Ms. stated that the is not providing therapy to the Student despite the Student’s difficulty with (Transcript at pages 244 and 245) but then indicated that the Student does receive speech services, but the reports could not be put in evidence because the therapist was a former DOE provider (Transcript at page 246).
Ms. testified that the Student receives two (2) forty-five (45) minute periods of “push-in” occupational therapy within the classroom setting per week and attends with the entire class two gross motor periods per week taught by the occupational therapist (Transcript at page 247). The Student receives counseling for thirty minutes once per week along with and for thirty (30) minutes once per week (Transcript at page 248 and 297). Ms. testified that she teaches the Student once per week in a reader’s theatre oral reading skills class once per week (Transcript at page 250). The Student participates once per week in a two hour talent development class which focuses on the Student’s gifted talents and interests and creates projects based on those interests (Transcripts at pages 254 to 256). Ms. stated that besides her duties as assistant director of special education and doing formal observations of the students she also co-teaches one of the three classes at the (Transcript at pages 258 and 259).
Ms. stated that she has never taught in a public school (Transcript at page 260) but has observed ICT classes for her graduate work but has never observed M.S. 442 (Transcript at page 262). Ms. stated that the Student is working on a high school level in math, but she was unsure of the Student’s math word solving ability (Transcript at pages 266 and 267). Ms. stated that homework at the is minimized meaning homework is made purposeful, meaningful and achievable for the student to do at home without (Transcript at page 274). Ms. testified that based on the Woodcock Johnson test the Student’s math fluency meaning the speed with which the Student executes problems was at a (Transcript at pages 288 to 290) and although the Student was superior in overall math calculation skills the Student still needs special education services to address the which pervades the Student’s academic functioning (Transcript at pages 296 and 297).
On red-direct Ms. testified that the school addresses the through individual , classroom and individual and sessions. The Student’s teachers help the Student reframe the Student’s social interactions in the classroom and at recess (Transcript at page 290 and 291). Ms. stated that not all the children in the have problems with social interaction (Transcript at pages 291 and 292). Ms. testified that the Student’s is addressed through the use of preferential seating, keeping the classroom calm with minimal distractions, using a , working in a location separate from the classroom and assistance from the (Transcript at page 295).
The Parent called as its second witness, Ms. , mother of the Student, who appeared in person. Ms. testified that the , but in writing and the language of math (Transcript at pages 303 and 306)). The Student was diagnosed with in (Transcript at page 304). When the Student left the public school system at the end of fourth grade the Student could only write at a (Transcript at page 304). The Student takes to help with , , (Transcript at page 305). The Student has difficulty interacting with teachers who view the (Transcript at page 306). The Student has an “amazing” ability to read and do math, has conceptual sophistication, is persistent, wants to do well and please her teachers (Transcript at page 306). The Student has and in public school refused to go out to lunch or recess. The Student has , is and (Transcript at page 307).
The Student attended at the local public school (Transcript at page 308). The found the Student to be a classroom management issue and yet the Student had finished Harry Potter by the end of . The Student got an IEP at the end of third grade (Transcript at page 308). A private worked with the Student’s teachers since Kindergarten on a . In fourth grade the Student was assigned to an ICT class (Transcript at page 309). After four months in the fourth grade the school social worker, school psychologist and the ICT teachers told the Parent “Look we can’t help the Student here. The Student needs more than we can do. You have got to get the Student somewhere else” (Transcript at page 310). After the Student was turned down by the Summit School in December of the Student’s fourth grade year the Parent heard about the Lang School and in the summer before the fifth grade enrolled the Student in the School. The Parent found the a perfect fit because the dealt with who had executive functioning problems. The Parent stated that because she could not find in the public school what the Student needed the Parent enrolled the Student in the (Transcript at pages 310 and 311).
The Parent testified that in the fourth grade the Student had to be dragged into school, but the Student is thrilled to go to (Transcript at pages 311 and 312). The Parent has noticed improvement in the Student’s writing (Transcript at pages 312 and 331).
The Parent testified that a month before the IEP meeting a from the DOE tested the Student for about two hours and the Parent participated in a social history interview at the same time (Transcript at page 313). The Parent stated that the psychologist did not know the Student’s diagnosis or what the term “twice exceptional meant” (Transcript at page 314).
The Parent stated that the people at the IEP meeting seemed to need to “take a breath for a minute” (Transcript at page 317) and refused to answer when questioned about their experience with (Transcript at page 318). The Parent stated that the IEP meeting had a very set pattern and that the Student’s test results were discussed at the IEP meeting, but the scores were not pulled apart to determine that the Student’s scores were higher in some areas and lower in other areas (Transcript at pages 318 and 319). The Parent also advised the IEP team about why the Student’s previous ICT class had failed (Transcript at page 318). There was a parent member present at the IEP meeting, but the Parent member provided no input. The Parent stated that the problem was not with the IEP goals but in how the Student needed to achieve the goals and when the Parent told the IEP team this they listened patiently and then continued. The Parent did not feel that anything she said made a dent (Transcript at pages 319 and 320). The Parent stated that when the Student really needs to think the Student gets up and paces which is why the Student is often observed walking around the classroom. The Parent stated that when she asked for an explanation of why an ICT class would work for the Student when it had not worked in the past the parent was told to discuss it with the school where the Student would be placed (Transcript at pages 321 and 322). The Parent told the IEP members that the Student needs more time with the teachers so that the teachers can help the Student get and address the Students needs for sensory breaks. The Parent told the IEP team that an ICT class cannot provide the Student with the needed teacher attention (Transcript at pages 322 and 323). The IEP team’s response was that the ICT class was what was available and if it was not sufficient the Parent could sue (Transcript at pages 323 and 324).
The IEP team suggested a transitional paraprofessional when the Parent expressed concern about the Student having to move from class to class. The Parent responded that she did not think the paraprofessional could give the Student enough scaffolding and support. The IEP team stated that the paraprofessional was what they had to give if the Parent did not think it was sufficient she had legal options (Transcript at page 324). The Parent stated that in response to the DOE placement letter received in late July 2011 (See Exhibit G) she sent a letter to the DOE expressing her concerns over the placement (See Exhibit H) and never received a response from the DOE (Transcript at page 326).
The Parent testified that she visited for two hours the day before public school opened and was shown around by the Parent liaison (Transcript at page 327). The Parent was advised that the class size would be fifteen (15) students with two teachers, that they did not have “push-in” therapy and that there was no paraprofessional available for the Student (Transcript at page 328). After the visit the Parent was concerned that the teachers would be unable to give the Student the attention the Student needed, the Student would appear not normal in the school, and the school would be unable to conserve and extend the progress the Student had made at the (Transcript at pages 328 and 330).
The Parent has seen improvement in the Student’s executive functioning skills and the Student has not been this (Transcript at pages 331 and 332). The Parent feels that is addressing the Student’s academic needs because the ’s work has improved and the Student is scoring higher on standardized tests. The is addressing the Student’s social and because the Student is not fighting to get out of school, is getting along better with friends and parents and is handling better (Transcript at pages 332 and 333).
The Parent testified that she signed a contract with the prior to the IEP meeting with the option of getting out of the contract if a sufficient public school placement was found (Transcript at page 333). The Parent testified that she has paid the total tuition of the of Forty Nine Thousand Five Hundred Dollars ($49, 500) in full (Transcript at page 334, See Exhibit L).
On cross-examination the Parent testified that in the fourth grade ICT class the Student did not have a paraprofessional (Transcript at page 335). The Parent did not tell the IEP team that she was going to continue the Student at the because the Parent had not decided yet but the Parent did request that the IEP team place the Student at the School. The Parent testified that she had made two additional payments to the School at the time she wrote the July 2011 letter to the DOE requesting more information on the Student’s proposed placement at because the Parent wanted to keep her options open (Transcript at page 337). The Parent testified that she decided not to send the Student to after she visited the school on the day before public school opened (Transcript at page 338).
On re-direct the Parent testified that she understood that she would have gotten all her money back if she cancelled the contract with the (Transcript at page 340).
The Parent stated that she advised the DOE by calling that she would not be sending the Student to the public school but that the Student would be attending the Lang (Transcript at page 342). The Parent was unsure if she sent written notice to the DOE that the Parent was rejecting the DOE placement (Transcript at page 344). The Parent stated that even though the August 24, 2011 notice to the DOE stated the Parent’s intent was to unilaterally place the Student at the unless a new IEP was developed recommending an appropriate full time special education program for the Student the Parent had not yet permanently decided where to place the Student. The notice was a miscommunication between the Parent and the Parent’s attorney and requested transportation for the Student (Transcript at page 346, See Exhibit B).
The Parent called no further witnesses and rested their case.
The parties stipulated that the first day of public school at was September , 2011 (Transcript at page 348).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Legal Framework and Standard
New York State Education Law Section 4404(1)(c) places the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.
The standard for reimbursement for placement by parents of children in a private program at public expense is set forth in School Committee of Burlington v. Department of Education of Massachusetts 471 U.S. 359 (1985) (Burlington (supra)). Burlington provides a three prong test. First were the services offered by the school district not appropriate or not adequate? Second, if so did the services the parents propose to obtain provide appropriate services to meet the unique educational needs of the child? Third, if so are there equitable considerations to support the parent’s claim for reimbursement? Where the services offered by the DOE not appropriate or not adequate?
I find that pursuant to New York State Education Law Section 4404(1)(c) the DOE has met its burden of production but not persuasion regarding the appropriateness of the placement.
I find that the services offered by the DOE were not appropriate or adequate and the DOE did not provide a FAPE.
The case of Board of Education v. Rowley, 458 U.S. 276, 206-07 (1982) (Rowley, (supra) provides a two part tests for appropriateness the first part looks at the procedural process and the second part looks to the substantive process.
I find that procedurally the IEP was adequate. The IEP team was duly constituted (See Transcript at page 69, Exhibit C-2). The parent participated in person (Transcript at page 317, Exhibit C-2). The appropriate documents regarding the Student were reviewed including the social history, the , the Fall/Winter report and the observation report done by Ms. (Transcript at page 70, See Exhibit’s E, F and 1). Minutes of the IEP meeting were kept (See exhibit D). The Parent’s argument that the general education teacher on the IEP team was not qualified to serve on the IEP team as a general education teacher because she had not taught general education for over a decade (Exhibit A, Transcript page 11) lacks merit.
Ms. stated that she knows that Ms. is a certified general education teacher (Transcript at page 102). The fact the general education teacher had not taught general education for over a decade does not make the IEP procedurally invalid. The failure of an IEP team to be properly constituted is not always a prejudicial procedural violation (See A.H. v. Dep’t of Educ. of New York City, 394 F. App’x 718, 55 IDELR ¶ 36 (2d Cir. 2010)
There was a parent member present at the IEP meeting (Exhibit C-2) and although Ms. testified that she did not recall any particular thing that the parent member did at the IEP meeting (Transcript at page 112) and the Parent testified that the Parent member provided no input the parent member’s lack of input does not make the IEP procedurally invalid. Neither the Parent nor the Student was significantly impeded in the opportunity to participate in the IEP process and there were no procedural inadequacies which caused a deprivation of educational benefits (See 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).
I find that substantively, however, the DOE did not provide a FAPE. The IEP created by the DOE was not “reasonably calculated to enable the child to receive educational benefits” (Rowley, supra). The IEP created did not sufficiently address the in social interactions. The –Educational report notes the Student’s (Exhibit F). The Parent testified that the Student has and in public school refused to go out to lunch or recess. The Student has
Ms. testified that the Student’s were discussed with the Parent and Ms. at the IEP meeting including the Student’s in and a tendency towards frustration (Transcript at pages 87 and 88). Ms. testified that the were noted on the IEP and the , and discussed at the IEP meeting, but no specific IEP goal was viewed as stemming from the Student’s (Transcript at pages 114 to 117). The IEP team’s response to the Student’s was to provide the Student with a transitional paraprofessional who would for the Student (Transcript at pages 100 to 101). However, the IEP team did not know the exact qualifications of the paraprofessional who was to handle the Student’s transition to a larger class and social situations (Transcript at pages 119 to 120). The IEP cannot be said to have provided the Student with an educational benefit if it ignored the Student’s .
Further, the IEP did not substantively address the discrepancy in the Student’s reading and writing scores. Ms. testified that the difference between the teacher’s observation that the Student was at a and the Student’s standardized test score showing a at the IEP meeting . However, the Parent testified that while the Student’s test results were discussed at the IEP meeting, the scores were not pulled apart to determine that the Student’s scores were higher in some areas and lower in other areas (Transcript at pages 318 and 319). These results go to the crux of the Student’s ability to learn yet this discrepancy in tests scores was not adequately explored at the IEP meeting in order to formulate a program that would address these discrepancies and provide the Student with an educational benefit.
The Parent’s concerns about an ICT class being inappropriate for the Student were also not substantively addressed at the IEP meeting. The CSE minutes note Parent indicates concern if ICT will work for her daughter as the class is to large (Exhibit D-3) but there are no notes following that indicating that the CSE addressed the Parent’s concern. Ms. testified that the Parent did express concern that an ICT class with thirty
(30) students twelve (12) of whom had IEP’s would be too large for the Student and the IEP team responded by recommending the paraprofessional (Transcript at pages 119 and 120). However the Parent testified that when she asked for an explanation of why an ICT class would work for the Student when it had not worked in the past the parent was told to discuss it with the school where the Student would be placed (Transcript at pages 321 and 322). Additionally, when the Parent told the IEP team that an ICT class cannot provide the Student with the needed teacher attention (Transcript at pages 322 and 323) the IEP team responded that the ICT class was what was available and if it was not sufficient the Parent could sue (Transcript at pages 323 and 324). The Parent had also testified that after four months in the fourth grade ICT class the Student’s school social worker, school psychologist and the ICT teachers told the Parent “Look we can’t help the Student here. The Student needs more than we can do. You have got to get the Student somewhere else” (Transcript at page 310). In view of the Student’s previous difficulty with an ICT class a more substantial discussion of this issue should have been addressed by the IEP team.
As the IEP did not substantially address the Student’s anxiety, the discrepancy in the Student’s standardized test scores or whether the Student could succeed in an ICT class, I find that the IEP was not substantially valid and thus a denial of FAPE. Are the proposed services obtained by the parent appropriate to meet the unique educational needs of the child?
I find that pursuant to New York State Education Law Section 4404(1)(c) the Parent has met their burden of production and persuasion regarding the appropriateness of the Student’s placement at the .
I find that the services obtained by the Parent of the are appropriate to meet the unique educational needs of the Student.
The appropriateness of a unilateral placement is based on whether the child is receiving educational services likely to produce progress not regression. Frank G. and Dianne G, v. Bd. Of Educ. Of Hyde Park, 459 F3d 356 (2d Cir 2006).
The testimony consistently indicated that the Student was making progress at the . Ms. stated that she has seen improvement in the Student. The Student’s ability to attend to non-preferred and teacher prescribed tasks has improved. The Student is producing higher level writing passages and relies less on checklists when proofreading her work (Transcript at page 276). The Student is and does not need to take as many out-of-classroom breaks. The Student is connecting better socially with the other students (Transcript at page 292). The Student has become more cognitively flexible and is able to intake other people’s ideas (Transcript at pages 237, 238, 265 and 266).
The Parent testified that in the fourth grade the Student had to be dragged into school, but the Student is thrilled to go to the (Transcript at pages 311 and 312) and the Parent has noticed improvement in the Student’s writing (Transcript at pages 312 and 331). The Parent has seen improvement in the Student’s executive functioning skills and the Student has not been this happy since kindergarten (Transcript at pages 331 and 332). The Parent testified that the Student’s work has improved and the Student is scoring higher on standardized tests. The Student is not fighting to get out of school, is getting along better with friends and parents and is handling difficult social situations better (Transcript at pages 332 and 333). This evidence of progress and not regression indicates that the Student is in an appropriate placement (See Frank G. v. Bd. Of Educ., 459 F3d 356 (2d Cir 2006)).
The DOE maintains that the Student’s placement at the was not appropriate as it is too restrictive and does not provide appropriate peer interaction (Transcript at pages 9, 365 and 366). The Least Restrictive Environment (LRE) mandate demands that students be educated in regular classroom settings to the maximum extent appropriate (See 34 CFR 300.114(a)).
Ms. testified that there are seven students in the Student’s class one of whom is a female and this is the only other female present at school lunch periods (Transcript at page 239, 240 and 254). Ms. testified that during the School day the Student only has an opportunity to interact with other students who have IEP’s (Transcript at page 244). This testimony indicates that the Student is in a restrictive environment and does not have a chance for appropriate peer interaction. However, although the IDEA expresses a strong preference for mainstreaming, districts cannot lose sight of their obligation to provide FAPE.( See P. v. Newington Bd. of Educ.,51 IDELR 2 (2d Cir. 2008) which held that while including students in the regular classroom as much as is practicable is undoubtedly a central goal of the IDEA, schools must attempt to achieve that goal in light of the equally important objective of providing an education appropriately tailored to each student's particular needs). In this case the Student has with social interactions and previously refused to go to lunch and recess in a LRE setting (Transcript at page 307). Until the Student’s and the Student is able to easily in social interactions a mainstream LRE placement with twenty students (Transcript at pages 134 to 135) would not be a placement that is appropriately tailored to this Student’s particular needs. I, therefore find that the is not too restrictive for the Student. Are there equitable considerations which support the parent’s claim for reimbursement?
The DOE maintains that the equities do not support the Parent’s claim for tuition reimbursement as the Parent had already signed a contract with the prior to the IEP meeting (Transcript at page 9 and 367, Exhibit L).
The DOE maintains as another equity argument that the Parent did not provide the required ten day notice of unilateral placement (Transcript at pages 369 and 370).
The Parent maintains there are no equitable considerations which would bar tuition reimbursement (Transcript at pages 13, 349 and 356).
I find that a balancing of the equities in this case supports a claim for partial tuition reimbursement (See W.M. v. Lakeland Cent. Sch. Dist., 783 F. Supp 2d 497, 57 IDELR ¶ 137 (S.D.N.Y. 2011)).
The Parent testified that prior to her visiting around September 6, 2011 she still had not decided whether to send the Student to the or the public school (Transcript at page 338). The parent also testified that she signed the contract with the prior to the IEP meeting in order to reserve a place for the Student at the , and the Parent understood that if the Parent decided to place the Student in a public school the would refund her money (Transcript at pages 333 and 340). However, the Contract clearly states that if st the is notified after September 1 that a Student is going to public school the initial payment to the Lang School of $12,500 will be retained (Exhibit L, Transcript at page 368). In view of today’s economic reality and the fact that the Parent stood to lose $12,500 by deciding after September 6th where to place the Student I find that the parent had a predisposition towards placing the child at the making this an equity weighing against full tuition reimbursement. Since pursuant to the terms of the contract the Parent would have lost $12,500 that amount must be deducted from the $49,500 tuition reimbursement being sought, leaving a remaining tuition reimbursement amount of $37,00.
The evidence also indicates that the Parent made her second payment to the School on June 15, 2011 (See Exhibit M-1) which was just two days after the June 13, 2011 IEP meeting. The Parent did not even wait to receive the DOE’s Final Notice of Recommendation dated July 11, 2011 (Exhibit G) before making her second payment to the . I find that this fact is an equity weighing against full tuition reimbursement and thus the second payment of $12,500 must be deducted from the remaining $37,000 tuition reimbursement amount leaving a remaining tuition reimbursement amount of $24,500.
The DOE maintains that the Parent did not provide the required ten day notice of unilateral placement (Transcript at pages 369 and 370). Pursuant to 34 CFR section 300.148 the cost of reimbursement may be reduced or denied if the parent did not at least 10 business days prior to the removal of a Student from public school give written notice of the unilateral placement to the district. On August 24, 2011 the Parent sent a notice to the DOE of their intent to unilaterally place the Student at the and requested transportation for the Student (Exhibit B). I find that this letter satisfies the ten day notice. However, the Parent testified that this letter was a miscommunication between the Parent and her attorney (Transcript at page 346) and the Parent did not give her unilateral notice until she called the district on September 6th, 2011 (Transcript at page 342). The Parent’s attorney stated that the August 24th, 2011 notice was the statutorily required notice sent on behalf of the Parent to preserve their right to seek reimbursement and the Parent cannot be expected to understand the reason behind the notice (Transcript at pages 357 and 358). While the Parent may not have understood the purpose of the letter the letter clearly states that the Student would be placed at the (Exhibit B-1) thus the Parent’s testimony that she did not make her decision as to where to place the Student until after she visited the public school 422 on September 6th, 2011 (Transcript at page
338) is not credible. The August 24th, 2011 notice of unilateral placement indicates a clear predisposition on the part of the Parent to place the Student at the and is another reason to grant only partial tuition reimbursement.
The DOE maintains as another equity argument that the formal speech testing done by the Lang School was not accessible to the DOE (Transcript at page 367). In general, parents run the risk of not being awarded tuition reimbursement on equitable grounds if they do not timely share evaluative material (Application of a Child with a Disability, Appeal No. 04-029; see S.M. v. Weast, 240 F. Supp. 2d 426, 437 [D. Md. 2003]),. The IEP recommended speech therapy as a “push-in” in classroom service at a ratio of 1X30:1and 1X30:3 (Exhibit C-14). Ms. stated that the is therapy to the Student despite the (Transcript at pages 244 and 245) but then indicated that the Student does receive , but the reports could not be put in evidence because the therapist was a former DOE provider (Transcript at page 246). Ms testified that the Student receives for thirty (30) minutes once per week (Transcript at page 248 and 297). Ms. Markus testified that the are addressed through individual , classroom monitoring and (Transcript at pages 290 and 291). I find that I cannot hold the Parent liable for not sharing the formal because of confidentiality or . However, I find that the testimony and evidence are unclear as to how much the Student is receiving and consider this as another reason to reduce tuition reimbursement. The should re-evaluate the Student’s speech therapy needs and provide the Student with to address the language skills.
Reimbursement sought for private placement must be reasonable (See Florence County Sch. Dist. V. Shannon Carter, et.al. 519 U. S. 7, 114 S. Ct. 361, 29 IDELR 532 (1993). Tuition reimbursement may be denied if the cost of the private placement is unreasonable. I find that the Forty Nine Thousand Five Hundred ($49,500) cost of the is not unreasonable as testimony indicated that the Student receives a lot of because there are only seven students in the class with two teachers (Transcript at page 236). There was no evidence or testimony that the cost of the tuition is unreasonable.
There was no evidence or testimony presented about the Parent’s request for transportation and so I make no findings regarding transportation.
ORDER
The Parent’s request for tuition reimbursement for the Student’s program at the Lang School for the 2011-2012 school year is partially granted in view of the equities of this case.
DOE is directed within thirty (30) days of this order to reimburse the Parent directly in the amount of Twenty Four Thousand Five Hundred Dollars ($24,500.00) this being the amount of tuition remaining after deducting the two payments of Twelve Thousand Five Hundred Dollars ($12,500.00) the Parent made to the prior to the DOE’s Notice of Final Recommendation.
The is directed to provide the DOE with an updated Evaluation and report by December 17, 2012. Dated: July 31, 2012
ELLEN ABBERBOCK, ESQ.
Impartial Hearing Officer
EA: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’s Exhibit Date Name of Document # of Pages
A 9/14/11 Impartial Hearing 6
Request
B 8/24/11 Notice of Unilateral 4
Placement
C 6/13/11 IEP 14
D 6/13/11 CSE Meeting 3
Minutes E 12/21/10 Classroom 6
Observation Report F 5/16/11 Evaluation 6 G 7/11/11 Final Notice of 1
Recommendation H 7/28/11 Letter to 2 I 1/14/12 Class Schedule 1
2011-2012 J Undated Final Notice of 1
Recommendation K Undated Progress Report for 12
2011 L 4/7/11 Enrollment 4
Contract 2011-2012 M 1/30/12 Affidavit of Tuition 1
Payment
DOE Exhibit Date Name of Document # of Pages 1 Undated Fall Winter 11
Progress Report 2 6/13/11 Academic 1
Performance and
Learning
Characteristics page
from IEP 3 1/19/12 Woodcock Johnson 1
Scores 4 11/22/11 DRA Scores 1