NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION*
Case No.
SED ID No.
Student’s Name:
Date of Birth:
District:
Hearing Requested by: Parent
Dates of Hearings: October 18, 2011
January 3, 2012
January 4, 2012
January 13, 2012
January 17, 2012
January 18, 2012
January 31, 2012
February 14, 2012
March 5, 2012
April 11, 2012
April 16, 2012
May 2, 2012
June 27, 2012
Record Close Date: July 31, 2012
Hearing Officer: Mindy G. Wolman
* This decision includes a corrected copy of the Exhibit List; the corrections were made pursuant to the Department of Educations request
On September 14, 2011, the parent (the “Parent”) of . (the “Student”) requested an impartial hearing under the Individuals with Disabilities Education Improvement Act (the "IDEIA"),[1] 20 U.S.C. section 1415 et seq and Article 89 of the New York State Education Law. I was appointed as impartial hearing officer on December 28, 2011, after the recusal of the three impartial hearing officers previously appointed to hear this case. The matter came on for a pendency hearing before Impartial Hearing Officer (“IHO”) on October 18, 2011. IHO Itzla issued an “Interim Order” on pendency on November 22, 2011 (IHO Exh. LX). Hearings went forward before me on January 3, 2012, January 4, 2012, January 13, 2012, January 17, 2012, January 18, 2012, January 31, 2012, February 14, 2012, March 5, 2012, April 11, 2012, April 16, 2012, May 2, 2012, and June 27, 2012.
The compliance date for issuing a decision in this proceeding has been extended.[2] Written documentation regarding the compliance date extension request(s) that I granted is included in the Hearing Record (IHO Exhs. XLIII through LIX).[3]
Lists of the persons who appeared at the hearings and the documentary evidence submitted are appended to this Order.
BACKGROUND AND POSITIONS OF THE PARTIES
who is classified as a student with a disability having . His classification and eligibility to receive special education supports and services are not in dispute. The Student attended a New York City Department of Education (“DOE”) program at for five years. (2006-2007, 2007-2008, 2008-2009, 2009-2010, and 2010-2011). In 2009 the Parent requested additional services, but was advised that the school could not give her any additional services. She obtained a private evaluation from the in the Spring of 2011. That evaluation recommended a change in program and additional services. The DOE’s Committee on Special Education convened two meetings (one in April, and on in June), with the end result being an Individualized Education Program (“IEP”) which recommended placement in a special class in a specialized school, with one 30-minute session per week of group ( ) counseling, two 30-minute sessions per week of individual and therapy, one 30-minute session per week of group ( ) therap, two 30-minute sessions per week of individual , and one 30-minute session per week of group ( ) (Parent Exh. B). As per his prior IEPs (Parent Exhs. C, D and GG), all related services were to be provided in a separate location. The CSE offered the Student Placement in a special class (a District specialized school) (DOE Exh. 3). This was the same placement that the Student had been in for the preceding five years.
The Parent rejected the CSE’s program and placement recommendations, and unilaterally placed the Student at the for the 2011-2012 school year as of September 1, 2011.[4] The is a nonpublic school that has not been approved by the Commissioner of Education as a school with which school districts may contract to provide special education services to students with disability. The Parent seeks reimbursement/prospective/direct funding for the for the 2011-2012 school year, along with prospective funding for home-based related services and (“ ”) services. She also requests that the New York City Department of Education (the “DOE”) be directed to continue to provide related services pursuant to Related Service Authorization (“RSA”) forms.
The Parent maintains that the recommended CSE’s recommendations were inappropriate and that the DOE did not offer to provide the Student with a free and appropriate public education (“FAPE”) for the 2011-2012 school year. The Parent further maintains that the Student had consistently failed to make progress with the program and level of services provided by the DOE and that some level of additional services should have been added to his program when the Parent first requested them in 2009. The Parent has raised both procedural and substantive challenges in this proceeding. The Parent maintains that the CSE’s program and placement recommendations were not reasonably calculated to enable the Student to receive meaningful educational benefits, that the was an appropriate placement, that equitable factors support the tuition reimbursement claim, and that the Parent is entitled to reimbursement for the tuition paid and prospective or direct funding of the balance of the tuition due. The Parent maintains that home and community-based services are a necessary component of the Student’s special education program, and seeks reimbursement and/or prospective funding for home and community based , physical therapy, speech therapy, and (“ ”) services. The Parent also seeks compensatory education for the DOE’s failure to provide individualized parent training and counseling (for the 2009-2010, 20102011, and 2011-2012 school years) and for ten hours per week of 1:1 home-based ABA services (from the date of the DOE’s receipt of the April 2011 evaluation). The Parent’s various arguments, which are more fully set forth in the Parent’s opening statement (Tr. 70-76) and posthearing brief (IHO Exh. LXII), will be discussed more fully below.
The DOE maintains that the Student has continually made progress at the placement, that it offered the Student a FAPE for the 2011-2012 school year (both substantively and procedurally), that any gaps in service or procedural errors were de minimus, that the DOE offered to provide parent training, that there was no need for a behavior intervention plan (“BIP”), and that if the placement was not appropriate then the placement was not appropriate either, because it did not have a BIP for the Student, did not provide ABA services, and did not provide the full level of related services requested by the Parent. It maintains that awarding home-based ABA services in addition to tuition would be “totally inappropriate and maximization” (IHO Exh. LXI at 26) The DOE also maintains that services are not necessary because the Student made progress at the without ABA services (IHO Exh. LXI at 27). The DOE further argues that the Parent is not entitled to reimbursement for the McCarton evaluation because she did not meet the criteria for an independent educational evaluation(“IEE”) the Student IHO Exh .LXI at 26), and that the Student is not entitled to compensatory education because was no gross deprivation of FAPE during the 2011-2012 School year (IHO Exh.LXI at 27). The DOE further argues that a tuition reimbursement award for the 2011-2012 school year “would more than adequately put the Student back in the position he would have been but for whatever gross violation could possibly be found for the short period of the 2010-2011 school year being contested by the Parent from April onward, and the Parent has suggested no specific harms that would require a day for day remedy or appropriate formula to use (IHO Exh. LXI at 27). The DOE’s legal arguments are more fully set forth in its opening statement (Tr. 67-70) and post-hearing brief (IHO Exh. LXI).
There was an extensive amount of testimony presented and documentary evidence submitted in this proceeding. The DOE’s exhibits included IEPS, a final notice of recommendation (“FNR”) the at school report card, the Assessment of Basic Learning and (“ABLLS”), evaluations, and reports. The DOE presented the testimony of two assistant principals, a school psychologist, a , an , two special education teachers, a site coordinator, and a unit coordinator. The Parent’s documentary evidence included IEPs, correspondence, evaluations and reports, invoices, proofs of payment, financial documentation, class profile and class information, staff assignment roster, related service provider roster and organization sheet, curriculum information, DOE publications and its Standard Operating Procedures Manual (“SOPM”), documentation, the contract and payment plan, and student handwriting samples. The Parent’s witnesses included a assistant principal (who appeared as both a DOE and Parent witness), the Program Director, the Student’s teacher from the , the Student’s and two , an expert witness ( expert), and the Student’s mother.
The Hearing Record also includes (as DOE, Parent, and IHO exhibits) the due process complaint and DOE response, documents and correspondence regarding subpoenas, documentation regarding compliance date extensions, and the parties’ post-hearing submissions). The testimony and documentary evidence submitted, along with the parties’ various legal arguments, will be discussed more fully below.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEIA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique special education needs, provided in conformity with a written Individualized Education Program (“ IEP”) (34 C.F.R. § 300.13). A FAPE is offered when (a) the board of education complies with the procedural requirements set forth in the IDEIA; and (b) the IEP is developed through the IDEIA's procedures and is reasonably calculated to enable the student to receive educational benefits (see Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). Tuition Reimbursement/Prospective/Direct Funding
A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].
The DOE has the burden of proving that it offered to provided . with a FAPE for the 2011-2012 school year. In order to meet this burden, it must establish that its CSE recommended an appropriate program and placement. The DOE must establish that the CSE’s program and placement recommendations were reasonably calculated to enable . to make meaningful educational progress. Despite the sheer volume of evidence presented in this proceeding, I find that the DOE did not meet its burden of proof. I base this finding on a variety of factors.
The DOE relies heavily on testimony regarding the Student’s prior progress in the class to support its contention that the CSE’s June 7, 2011 program recommendations were reasonably calculated to enable the Student to make meaningful educational progress. Having carefully considered the testimony of all witnesses (and assessing the credibility and reliability of their testimony) and of the documentary evidence, I am not persuaded that the Student actually made any meaningful progress during the last two years in the class with the level of related services provided. The testimony of the DOE witnesses was inconsistent with respect to his progress, his , the effectiveness of the TEACCH methodology utilized at the school, etc.
The DOE’s primary witness re the Student’s overall progress was , who served as the Student’s special education teacher during the 2010-2011 school year, and who participated in the Student’s April 4, 2011 and June 7, 2011 IEP meetings. Despite her assertions of progress, Ms. acknowledged that the Student needed “a great deal of promptly to do just about anything” (Tr. at 461). Moreover, her testimony regarding his steady and meaningful progress was contradicted by the ABLLS assessment (which she purportedly relied on), as well as the testimony of the Student’s mother and P.231 related service providers.[5]
It is undisputed that the Student’s most significant areas of deficit were in the area of communication and language, and his inability to remain on task for more than a few minutes. A review of the ABLLS assessment performed by Ms. (DOE Exh. 11) reveals that between October and March of the 2010-2011 school year, the Student made minimal progress in making requests, labeling, intraverbals, social interaction, group instruction, and reading, dressing and no progress whatsoever in spontaneous vocalization, syntax/grammar and eating. The Student’s DOE speech provider acknowledged that he made “slow progress” between 2009 and 2011, and that there was the potential for more meaningful progress (Tr. at 792). She stated that he made “some progress” (Tr. at 770; see also Tr. at 544) or “a little bit” of progress toward meeting his goals (Tr.
776. 776). The speech provider also testified that she had problems with the during therapy sessions, and had to redirect him about seven times during a 30-minute session (Tr. at 784).
The Student’s reading and math skills do not appear to have improved during 2009-2010 and 2010-2011 school years in the class at . In the Student’s April 6, 2009 IEP, his reading and mathematics performance levels were reported as being at the kindergarten level (Parent Exh. C). In the Student’s April 7, 2010 IEP, his reading and mathematics performance levels were still reported as being at the kindergarten level (Parent Exh. GG). As of February 23, 2011, his reading and mathematics performance levels were reported as being below first grade for reading, and at the pre-k and kindergarten level for math (Parent Exh. G at 9). As of March 28, 2011, his receptive language skills were at the 2 years and 9 months level, his skills were at the 2 years and 8 month level.
Based on the foregoing, I reject the DOE’s contention that the Student had been making meaningful educational progress in the special class at , as well as the DOE’s contention that he would have made progress with the CSE’s recommended program and placement during the 20112012 school year.
The only current evaluation material as of the June 7, 2011 IEP meeting was the Report (Parent Exh. E), the Evaluation (Parent Exh. F), and the /developmental evaluation (Parent Exh. G). In light of those reports and the recommendations contained therein, and in light of the minimal (if any) progress that the Student made in the with the goals and related services mandates of his prior IEPs, I cannot find that the CSE’s June 7, 2011 program recommendations were reasonably calculated to allow the Student to receive meaningful benefits. He would receive trivial benefits, at best. The Student needed to receive a substantially higher level of occupational therapy and . The IEP did not address his and his need for throughout the day. The Student needed frequent input in order to remain engaged in instruction and to be able to attend in the classroom (Tr. a 685). The CSE’s recommended program and placement would not have addressed the issues and his . He would have received sensory input at the beginning of this sessions, in order to be able to attend and remain on task, etc., but would not have received them at other times. His issues are not limited to the times when he is receiving . As such, an educational program and placement which limits to three times per week in occupational therapy would not address his needs.
Another problem with the June 7, 2011 IEP is the complete failure to address the Student’s . The Student is presently (he during the hearings held herein), and has the functioning of a two year old. Yet based on the recommendation of his DOE speech provider, the CSE limited his goals to . When asked about why she chose not to provide receptive language goals, (the Student’s 2010-2011 ) replied as follows:
Yes. He was pretty deficient in receptive language. Generally we use two goals and we chose those goals that are relevant to the child and that they can achieve and we want them to be able to master those goals at the end of the year. And that’s why I chose those goals. (Tr.
at 594).
Ms. acknowledged that he could have ten goals, but indicated that she chose to just have those two (pragmatic and expressive) goals she “felt that those were the most relevant to [R.]” (Tr. at 594). She further stated that she did not consider the evaluation in formulating goals or making program recommendations (Tr. at 597).
Although an IEP need not specify a particular instructional methodology, a student’s placement must use methodologies that can effectively address the student’s needs and enable him or her to work toward meeting IEP goals. For example, if a student requires multi-modal instruction to learn, the placement needs to be able to provide that type of instructional methodology. Even though the recommended a full-day , and the Parent had a stated preference for such a program, the fact that does not utilize methodology does not, in and of itself, mandate a finding that it would not be an appropriate placement. However, the DOE is not relieved of the burden of establishing that the placement was appropriate.
The at classes utilize the TEACCH methodology. TEACCH utilizes a visual schedule protocol, where children start out in group instruction and then break down into smaller groups and work independently (Tr. at 1258). Dr. , the Parent’s expert witness, observed the Student’s class at and prepared a report based upon that observation and her review of records (Parent Exh. J). According to Dr. , Ms. reported that the Student received about 30 minutes per day of individual instruction in her class, and was then expected to be independent for the rest of the time (Tr. at 1258). This instructional methodology was not effective for the Student because he is not capable of working independently and has high rates of (Tr. 1259-60).
According to DOE documentation on the TEACCH methodology, TEACCH “provides structure, organization and prompts to promote independence and communication” (Parent Exh. O at 1). TEACCH has not worked for the Student. After four or five years in a classroom utilizing the TEACCH methodology, he is still not capable of independent work. The maximum amount of time that he can remain on task without redirection is between two and five minutes. Moreover, he has become heavily prompt dependent. It is clear from his teacher and service providers that he still requires prompts for most things. On this basis alone, it is clear that the program utilizing the TEACCH methodology, is not appropriate for the Student The DOE documentation further provides that “TEACCH classrooms are recommended for students who are visually oriented and who also demonstrate basic behavioral attending skills” (Parent Exh. O at 2). The Student does not demonstrate basis behavioral attending skills. To the contrary, his inability to attend is one of his greatest deficit areas. The DOE’s own documentation regarding the TEACCH methodology therefore makes clear that it is inappropriate for the Student. He should not be placed in a class that utilizes the TEACCH methodology. It is therefore not surprising that he made minimal educational progress during the last few years at .
Based on the foregoing, I find that the DOE failed to meet its burden of proving that it offered to provide the Student with a FAPE for the 2011-2012 school year. Having reached that conclusion, I need not address the Parent’s other substantive and procedural challenges. I will, however, touch upon some of the briefly.
The CSE’s failure to include parent counseling and training in the Student’s IEP was inappropriate and constituted a substantial FAPE deprivation. With appropriate parent counseling and training, the Student might have been able to master a higher level of activities of daily living (“ADL”) skills and might have been able to generalize them from the school to the home environment. There was no parent counseling and training, and the few he did learn at school were not generalized to the home environment. For example, he could and at school, but not at home. I note that the DOE testimony regarding the availability of parent training and parental access to teachers and service providers was particularly unpersuasive.
Dr. , the Parent’s expert witness, noted that the Student has high rates of , including , that were not being addressed in the classroom (Tr. 1260). Dr. noted that his should have been addressed during the four years he was in the program. Since he was still exhibiting the behavior, Dr. concluded that the program had not met his language needs. I note that I give great weight to Dr. s observations and opinions, and reject the DOE’s contention that her report and testimony were not credible.
I also find that the CSE’s program and placement recommendations did not provide for the generalization of skills to the home environment, and did not sufficiently address .
With respect to some of the procedural issues raised herein, I note that there was conflicting testimony (amongst the DOE witnesses) regarding whether, and the extent to which, the reports were considered and discussed at the June 2011 IEP meeting. I also found it troubling that Ms. indicated that although she relied on the ABLLS in order to prepare the IEP and develop goals, she did not share the ABBLS data with the Parent because she felt it wasn’t the type of information that the Parent needed to have (Tr. at 411). I had the same problem regarding the DOE testimony about the administration of the PLS-4. She didn’t share those results with the Parent because in her view, Parents do not need to be told, and should not be told, their children’s age equivalents for speech and language skills. The CSE has an obligation to share information with Parents. Instead, the CSE that met to prepare the June 2011 IEP specifically and intentionally withheld information from the Parent. The intentional withholding of evaluation and assessment data deprived the Parent of the opportunity to meaningfully participate in the Student’s IEP meeting. As such, it constitutes a FAPE deprivation that goes beyond a mere procedural irregularity.
Ms. acknowledged that . but indicated that no was necessary because he could be successfully redirected (Tr. at 486). However, it would appear that an appropriate program would address his and inability to remain on task. With such a program, those behaviors would reduce and the Student would gain a level of independence and increased ability to learn. Instead, program was to just redirect him throughout the day. Given that his ability to remain on task was so limited (two to five minutes), he needed to be constantly redirected. The continuation of this type of program would keep him in a highly restrictive setting indefinitely. It is clear from the testimony of the and , that his inability to communicate was causing significant problems. Much of his was due to and issues. Instead of issues throughout the day to help him remain on task, the Student’s program utilized reminders to stay on task. The Student’s teacher, classroom paraprofessionals, and related service providers did nothing to address the underlying cause of his . Without addressing the underlying cause, the behaviors would, if he continued in the CSE’s recommended program and placement, have continued indefinitely.
For all the foregoing reasons, I find that the DOE failed to establish that it offered to provide the Student with a FAPE for the 2011-2012 school year. The Parent has met the first of the three Burlington/Carter criteria for tuition reimbursement.
The Parent has the burden of proving that the placement was appropriate for the Student. In order to meet this burden, the Parent must establish that the program provided instruction specially designed to meet the Student’s unique special education needs. Although the restrictiveness of the program may be considered, the program need not be in the least restrictive environment (“LRE”). The program need not employ certified special education teachers or provide all of the services needed by the student. Based on the testimony and documentary evidence presented at the hearing, I find that the Parent has met her burden of proof.
The DOE’s challenges to the placement are relatively limited. In the DOE’s opening statement, general reference was made to the Parent’s inability to meet her burden of proof on Prong Two; the DOE indicated that it would reserve comments on that issue until after the evidence was heard (Tr. at 69-70). The DOE noted, however, that the level of services that the Parent is requesting with respect to the placement contradicts the evaluations obtained by the Parent (Tr. at 70). In the DOE’s post-hearing brief, the DOE argued as follows:
[I]f P231 was inappropriate for the Student, would have to as well since it also does not utilize the ABA instruction model that was recommended for the Student, has not enacted an FBA or BIP to address the Student’s alleged and does not provide the related service mandates the Parent claims is necessary for the Student to progress. The Parent, despite the attempt, cannot have it both ways:
either these facts deny FAPE or they do not. If they do not, the District’s IEP and placement are appropriate. If they do, School is also inappropriate. (IHO Exh. LXI at 27)
When the due process complaint was filed on July 18, 2011, the Parent sought reimbursement, and/or direct/prospective funding, for the following program: placement at the , three hours per week of home/community-based services; three hours per week of home/community-based occupational therapy services, two hours per week of home/community physical therapy services; twenty hours per week of , and four hours per month of level supervision. Although the Parent’s preference had been for placement at an , she was not able to place him in such a program because she could not find one that had an opening (Tr. 1524-1525). One of the Schools recommended that she look at the , and she followed up on the suggestion. The Student was in fact placed at the . However the home/community related services and were not implemented because the Parent was not able to pay for the services. The services could not be provided without prospective or direct funding.
I reject the DOE’s contention that the was not appropriate because it did not utilize , did not have a , and did not provide for the related services mandates that the Parent seeks herein. The crux of the DOE’s argument is that if the DOE’s program and placement was inappropriate for these reasons, then the Rebecca is inappropriate as well. However, I did not find that the DOE’s program was inappropriate based on the lack of and lack of a . My findings were based on the prior demonstrated lack of success in the same program, the failure to address receptive language, the failure to address sensory integration issues, the failure to address interfering behaviors other than by redirection, the failure to provide parent training and counseling, the failure to provide for generalization of skills, the failure to adequately address , the inappropriateness of the TEACCH methodology for the Student.
If the utilized the TEACCH methodology, I would have had to agree with the DOE and found it to be inappropriate. However, the does not use the TEACCH methodology. It uses the DIR-Floortime model, which is a developmental model (the Developmental Individual Difference Relationship-Based) that addresses in relating and communicating (Tr. at 1121). Per , the director:
The mission of the school is to understand each child’s individual profiles, individualize a plan to help meet their strengths and their limitations, move them up the developmental ladder to be able to become thinking, relating, communicating people in their environments to the best of their abilities. (Tr. at 1121)
The Student’s program at the is tailored to meet his individual and unique special education needs. Based on the unrebutted and credible testimony of the staff, and upon my review of the Interdisciplinary Report of Progress (Parent Exh. L), I find that the Parent met her burden of establishing that the provided instruction specially designed to meet the Student’s unique special education needs. School staff specifically adapted curriculum to meet the Student’s individual needs, and the staff held regular team meetings to discuss the Student’s progress, modify and adapt his program, etc. The school has a sensory gym that was available throughout the day to address the integration issues. The program is, according to Dr. , a program (Tr. at 1265). The program is designed to address all of the Student’s communication delays ( ). It also addresses his . The Student’s program at the includes services to address his . The Student has an which helps address the Student’s auditory processing delays. Moreover, the Student has made significant progress in all domains at the school. The DOE is correct in its assertion that the does not have a for the Student. However, the school has effectively addressed his ability to communicate. His have . His ability to attend has increased. The school also provides the Parent with parent training and counseling.
The program has provided the Student with an appropriate level of occupational therapy and speech and language therapy during the school day. As such, he has been making progress in the program. The additional related services requested by the Parent were for after the school day. The purpose of the additional services, and home-based , is to enable the Student to generalize skills and to work on skills he cannot learn in the school environment but still needs to learn for independence (self-care skills such as bathing). The lack of after-school services does not render the inappropriate. I find that it was an appropriate component of the Student’s special education program for the 2011-2012 school year.
The Parent also seeks reimbursement or prospective/direct payment for the cost of home/community based supervision. The school year is over, and the Student did not receive these additional services because the Parent did not have the financial means to provide the services pending reimbursement. The DOE contends that granting that portion of the Parent’s request for relief is that it would be “totally inappropriate and maximization” It also maintains that the instruction and home/community services are not necessary for the Student to receive educational benefits.
I realize that the Parent seeks funding as a component of the Student’s unilateral placement. I also realize that the only reason that the other components of the program (the home/community based related services and ) were not implemented was that the Parent did not have the financial means to pay for the services. However, in light of the testimony regarding the manner in which the program met the Student’s needs and enabled him to make progress, I find that the additional services weren’t necessary for the Student to receive meaningful educational progress during the 2011–2012 school year. As such, I decline to find that the Student’s reimbursement/funding award should include payment for home/community based related services or home-based services.
The Parent has, however, met her burden of proving that the placement that the is an appropriate placement for the Student for the 2011-2012 school year. As such, the Parent has met the second of the three Burlington/Carter criteria for tuition reimbursement.
Although the DOE stated, in a conclusory fashion, that equitable factors preclude reimbursement (Tr. at 70; IHO Exh. LXI at 27), I can find nothing in the Record to support this contention. The Parent fully cooperated with the CSE and timely shared the results of the private evaluations that she obtained. She provided the CSE with timely and detailed notice of her rejection of the CSE’s program and placement recommendations and of her intent to unilaterally place her child and seek tuition reimbursement. The CSE was aware of the Parent’s disagreement of its recommendations as of the time of the April 2011 and June 2011 CSE meetings. The Parent also sent two letters to the CSE (Parent Exhs. I and BB). There is no basis for me to deny reimbursement on equitable grounds. As such, the Parent has met the third of the three Burlington/Carter criteria for tuition reimbursement.
Having met all three prongs of the analysis, the Parent is entitled to reimbursement for the cost of the Student’s enrollment at the for the 2011-2012 school year. The total cost of that enrollment for the period September 2011 through June 2012 is $78,960.00 (Exh. PP at 5-11; Tr. at 1139, 1199, 1532). The Parent has paid a portion of the amount due pursuant to a payment plan with the .
The Parent maintains that she does do not have the resources to pay for the entire cost of the tuition, and that she has been working overtime in order to be able to make the payments that she has made. She requests that she be reimbursed for the amounts paid to date, and that I direct the DOE to issue prospective or direct payment for the balance due by issuing payment directly to the .
“Prospective funding” (See Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law
Rep. 767 (N.D.N.Y., 1998)) and “retroactive direct tuition payment”(See Mr. & Mrs. A. ex rel.
D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)) are appropriate remedies in due process proceedings seeking payment for unilateral placements.
Prospective funding was addressed in Connors v. Mills: “Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately" (Connors v. Mills at 805-806).
Retroactive direct tuition payment was addressed in Mr. & Mrs. A. ex rel. D.A. v. New
York City Dep't of Educ: “[W]here a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief. A contrary ruling would be entirely inconsistent with IDEA's statutory purpose, including the goal of ensuring a FAPE to the least privileged of the disabled children in our nation” Mr. & Mrs. A. ex rel. D.A.
v. New York City Dep't of Educ., at 428.
It is clear from the Record that the Parent does not have the financial resources to pay for the full cost of the tuition. The Hearing Record includes her testimony regarding her financial situation, and copies of her tax return and her W-2 earnings statement. The Parent’s annual income ($31,416.00) is not sufficient to pay for the cost of the tuition. The DOE does not dispute the Parent’s lack of financial resources. The Parent is entitled to prospective funding under the Conners decision and to direct payment under D.A. v. New York City Dep’t of Educ.
Reimbursement for the Evaluations
The Parent seeks reimbursement for the cost of the private evaluations that she obtained from the (Exhs. E, F, and G). The evaluations included an evaluation, a comprehensive and evaluation, and a evaluation. The DOE asserts that these evaluations are in the nature of an independent educational evaluation (“IEE”) and that the Parent hasn’t established that she is entitled to an IEE. The Parent maintains that the CSE relied on the evaluations in making program recommendations and that, as such, she is entitled to reimbursement for the cost of the evaluations.
An independent educational evaluation (an “IEE”) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student. 8 NYCRR § 200.1(z). “If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense, 8 NYCRR § 200.5(g)(1)
If a parent requests an IEE at public expense, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv).
The Parent did not request an IEE at public expense prior to obtaining the evaluations.
Having not followed the procedure set forth in 8 NYCRR § 200.5(g)(1), the Parent is not entitled to an IEE at the public expense. The fact that the CSE considered the evaluations after she obtained them does not give rise to a reimbursement claim. As such, the Parent’s request for reimbursement for the cost of the evaluations is denied.
Compensatory Education/Services and Other Relief
The Parent seeks an award of compensatory education/services for the DOE’s gross violation of parental due process rights, its failure to provide parent training and counseling for the 2009-2010 and 2010-2011 school years, and its failure to provide an appropriate program and placement to the Student for the 2009-2010 and 2010-2011 school years. The DOE maintains that the Parent is not entitled to any compensatory education or services because any deprivations wee de minimus. The DOE further asserts that any tuition reimbursement reward for the 2011-2012 school year would more than cover any prior FAPE deprivations.
Compensatory education and compensatory services are equitable remedies. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where “there has been a gross violation of the [IDEA] resulting in the denial of, or exclusion from, educational services for a substantial period of time. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir.
1994); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071(2d Cir.
1988)].
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v.
Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y.Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No.
08-054).
The DOE’s contentions that any FAPE deprivation has been de minimus and that the tuition reimbursement award herein renders a compensatory education award unnecessary are incorrect. According to the Commissioner’s Regulations, “‘parent counseling and training” means “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program”
(200.1(kk)). The Regulations further provide that parents of be provided with parent counseling and training “for the purpose of enabling parents to perform appropriate follow-up intervention activities at home” ( 8 NYCRR 200.13(d)).
The Student’s IEP should have provided for parent training and counseling, but it did not. The testimony presented (during the DOE’s rebuttal case) regarding parent training at was unconvincing. The Parent was not given any meaningful opportunity for parent training and counseling, which prevented her from supporting the implementation of the IEP and providing appropriate interventions and strategies at home. This limited the Student’s generalization of skills to the home environment and limited his skill acquisition. The Parent is entitled to compensatory education for the failure to provide parent counseling and training during the 2009-2010 and 20102011 school years. Since she received Parent counseling and training during the 2011-2012 school year from the , and the DOE is being directed to fund the placement, there is no entitlement for compensatory education for the DOE’s failure to provide the Parent with parent counseling and training during the 2011-2012 school year.
The due process complaint specifically requests a compensatory education award for “gross violations of [R.]’s entitlement to a FAPE during the last two years” (Parent Exh. A at 9). Even though the Student did have a program and placement at during the 2009-2010 and 2010-2011 school years, he did not receive a FAPE during those years. The program was inappropriate and insufficient. The TEACCH methodology was inappropriate, and the Student made minimal progress. The level of related service support was insufficient. No provisions were made, nor was there any concern about, generalization of skills learned to the home environment. During that time, his , his were not addressed, and his were not appropriately addressed. The DOE’s failure to provide a FAPE directly resulted in the Student’s failure to make meaningful and appropriate progress.
The Parent expressed concerns about the Student’s lack of progress in 2009, and specifically asked for more services. She was advised, without the benefit of a CSE meeting or reevaluation, that additional services were not available. The insufficient related services, lack of parent , and the continued in a TEACCH class, constituted a gross and prolonged FAPE deprivation which resulted in the Student making only minimal progress. Rather than addressing and seeking to reduce the Student’s , his teachers and service providers simply redirected him every few minutes. They should have, but did not, implemented a program and provided services in an effort to actually reduce the interfering behaviors (which would have been a program and services designed to allow the Student to make progress). The lack of appropriate services also kept the Student from making appropriate gains in receptive and , which in turn impacted his ability to benefit from instruction.
The Student is entitled to compensatory education for the DOE’s failure to provide him with a FAPE during the 2009-2010 and 2010-2011 school years. There is no entitlement to compensatory education for the 2011-2012 school year, since the DOE is being directed to fund the Rebecca School placement for that year. The DOE is correct in its assertion that an appropriate remedy cannot be fashioned by simply directing an hour-for-hour award for missed services. Instead, I look to the reports and Dr. ’s report and “expert witness” testimony for guidance regarding an appropriate compensatory education award.. I also take into consideration the testimony of the Program Director and the Student’s 2011-2012 teacher and related service providers in order to fashion an appropriate remedy for the prolonged FAPE deprivation. I find that the provision of additional services can remedy the prolonged FAPE deprivation.
Based on the foregoing consideration, the Parent and Student are awarded twenty-four (24) months of the following services as and for compensatory education for the DOE’s failure to provide the Student with appropriate special education services and instruction during the 20092010 and 2010-2011 school years: two hours per week of home/community-based speech and language therapy, 20 hours per week of home-based instruction, two hours per week of ABA supervision by a Board Certified Behavior Analyst (“ ”), and two hours per week of parent counseling and training. The DOE shall fund the foregoing compensatory education award by making direct payment to the providers chosen by the Parent.
ORDER
IT IS HEREBY
ORDERED that the New York City Department of Education is directed to fund the Student’s 2011-2012 enrollment at the in the amount of $78,960.00 by reimbursing the Parent for any payments made within fifteen (15) days of submission of proof of payment and by issuing payment directly to the for the balance due within (15) days of the submission of an affidavit setting forth the balance due (without the need for submitting a copy of the contract, which is included in Parent Exh. P); and it is further
ORDERED that the Parent’s claim for reimbursement or prospective funding for the cost of home/community-based occupational therapy therapy, services and supervision for the 2011-2012 school year is denied: and it is further
ORDERED that the Parent’s request for reimbursement for the cost of the 2011 Evaluations is denied; and it is further
ORDERED that the DOE is directed to provide twenty-four (24) months of the following compensatory education and services, starting on September 1, 2012, as and for compensation for the DOE’s failure to provide the Student with appropriate special education services and instruction during the 2009-2010 and 2010-2011 school years: two hours per week of home/community-based speech and language therapy, 20 hours per week of home-based instruction, two hours per week of supervision by a (“ ”), and two hours per week of parent counseling and training; the DOE shall fund the foregoing compensatory education award by making direct payment to the providers chosen by the Parent. Dated: August 13, 2012 Exhibit List Corrected: September 9, 2012* MINDY G. WOLMAN
Impartial Hearing Officer
* This decision includes a corrected copy of the IHO Exhibit List; the corrections were made pursuant to the Department of Educations request
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2011
Esq. Attorney — Parents
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2012
Esq. Attorney — Parents
Esq. Attorney — Parents
Esq. Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — Parents
Esq. Attorney — DOE
* Bilingual School Psychologist (by telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — Parents
Intern — Parents
Esq. Attorney — DOE
* Teacher (by telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
* Teacher (by telephone) — DOE
* Testified at Hearing
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — Parents
Esq. Attorney — DOE
* Teacher (by telephone) — DOE
* Unit Coordinator — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
* Occupational Therapist (by telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
* Teacher — DOE
* Occupational Therapist — DOE
* Assistant Principal (by telephone) — DOE
* Assistant Principal Parent6 (by telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
* Teacher — DOE
* Program Director — Parents
* Testified at Hearing
appeared as a DOE witness, and was recalled as a Parent witness.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2012
Esq. Attorney (by telephone) — Parents
Esq. Attorney (by telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
Ph.D.* Board Certified Behavior Analyst — Parents
* Teacher (by telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2012
* Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
* Pathologist (by telephone) — Parents
* Pathologist (by telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2012
Mother
Esq. Attorney — Parents
Esq. Attorney — DOE
* Assistant Principal — DOE
* Unit Coordinator — DOE
* Testified at Hearing
DOCUMENTS ADMITTED INTO EVIDENCE
DEPARTMENT OF EDUCATION EXHIBITS
Exh. Document Description
1. Individualized Education Program, 6/7/11 (date appears on page 13), 15 pp.
1. Individualized Education Program, 4/4/11 (date appears on page 11), 13 pp.
2. Final Notice of Recommendation, 6/7/11, 2 pp.
3. Evaluation, 2/23/11 and 4/12/11, 8 pp.
4. Report Card, undated, 2 pp.
5. MARKED FOR IDENTIFICATION ONLY
6. Comprehensive Evaluation, 3/28/11, 4 pp.
7. Report, 3/9/11, 13 pp.
8. Due Process Complaint, 9/14/11, 10 pp.
9. Due Process Response, 9/22/11, 4 pp.
10. ABLLS Charts, undated, 3 pp.
11. MARKED FOR IDENTIFICATION ONLY
PARENT EXHIBITS
Exh. Document Description
A. Demand for Due Process and fax confirmation, 9/14/11, 12 pp.
B. NYC DOE Individualized Education Program, 2011-2012, 4/4/11, 16 pp.
C. NYC DOE Individualized Education Program, 4/6/09, 16 pp.
D. NYC DOE Individualized Education Program, 4/4/11 (date appears on p. 13), 15 pp.
E. Occupational Therapy Report, 3/9/11, 13 pp.
F. Comprehensive Evaluation, 3/28/11, 4 pp.
G. Evaluation, 2/23/11 and 4/12/11, 10 pp.
H. Letter from Parent to PS 231 and CSE 7. 4/27/11, 1 p.
I. Letter from Parent to CSE 7 and fax confirmation, 6/15/11, 3 pp.
J. Educational Program Review and Recommendation, 7/6/11, 8 pp.
K. NYC DOE - Due Process Response, 9/22/11, 5 pp.
L. Initial Interdisciplinary Report of Progress, December 2011, 12 pp.
M. Invoices and Proof of Payment for Evaluation, various dates in 2011, 14 pp.
N. MARKED FOR IDENTIFICATION ONLY
O. New York City Department of Education document entitled “T.E.A.C.C.H.
Methodologies,” 2/7/11, 3 pp.
P. MARKED FOR IDENTIFICATION ONLY
Q. MARKED FOR IDENTIFICATION ONLY
R. New York City Department of Education document entitled “ . Methodologies,” 2/7/11, 3
pp.
S. MARKED FOR IDENTIFICATION ONLY
T. MARKED FOR IDENTIFICATION ONLY
U. MARKED FOR IDENTIFICATION ONLY
V. NYC DOE Standard Operating Procedures Manual, February 2009, 305 pp.
W. United States District Court, Eastern District of New York order, Jose P., et al v. Thomas
Sobel, et al, July 28, 1988, 69 pp.
X. Assessment of Basic Language and Learning Skills, copyright 1994-2008, 115 pp.
Y. W-2 and Earnings Summary, 2010, 1 p.
Z. Class Profile 231@215, undated, 1 p.
AA. Staff Assignments, undated, 5 pp.
BB. Letter from Parent to Region 7, 9/1/11, 2 pp.
CC. Related Service Provider Schedule Mandates as per IEP, 9/18/11, 12/16/11, and undated, 4
pp.
DD. Grade 1 Program, November 2011 - June 2012, 7 pp.
EE. Math in Focus, undated, 1 p.
FF. Income Tax Return, 1/24/11, 2 pp.
GG. Individualized Education Program, 4/7/10, 17 pp.
HH. Organization Sheet, 2011-2012, 4 pp.
II. Subpoena Duces Tecum with fax confirmation, 1/19/12, 6 pp.
JJ. Class Information, 2011-2012, 4 pp.
KK. Letter from Ms. to Mother, 5/2, 1 p.
LL. Student’s Handwriting Sample (District), undated, 3 pp.
MM. Student’s Handwriting Sample ( ), undated, 1 p.
NN. Payment Plan, 2/15/12, 1 p.
OO. Proof of Payment for the , 3/14/12 and 4/4/12, 2 pp.
PP. Parent’s Subpoena response, 3/16/12, 2 pp.
IHO EXHIBITS
Exh. Document Description
I. Appointment After Recusal, 12/28/11, 2 pp.
II. Email from , 12/28/11, 2 pp.
III. Email from , 12/28/11, 2 pp.
IV. Email from , 12/28/11, 1 p.
V. Email from , 12/28/11, 2 pp.
VI. Email from , 12/28/11, 2 pp.
VII. Email from , 12/28/11, 1 p.
VIII. Email from forwarding email from , 12/28/11, 2 pp.
IX. Email from , 12/28/11, 2 pp.
X. Email from , 12/28/11, 1 p.
XI. Email from IHO Wolman, 12/28/11, 2 pp.
XII. Email from , 12/30/11, 3 p.
XIII. Email from IHO Wolman, 12/30/11, 1 p.
XIV. Email from , 12/30/11, 2 pp.
XV. Email from IHO Wolman, 12/30/11, 2 pp.
XVI. Email from , 12/30/11, 1 p.
XVII. Email from IHO Wolman, 12/30/11, 1 p.
XVIII. Email from IHO Wolman, 12/30/11, 1 p.
XIX. Email from , 12/30/11, 1 p.
XX. Email from IHO System, 12/30/11, 2 pp.
XXI. Email from , 12/30/11, 1 p.
XXII. Email from IHO Wolman, 12/30/11, 1 pp.
XXIII. Email and Letter from , 12/30/11, 2 pp.
XXIV. Email from , 12/30/11, 1 p.
XXV. Auto-Reply Email from IHO Wolman, 12/30/11, 1 p.
XXVI. Email from IHO Wolman, 1/2/12, 1 p.
XXVII. Email from IHO System, 12/28/11, 1 p.
XXVIII. Email from IHO Wolman, 12/30/11, 1 p.
XXIX. Subpoena to Committee on Special Education #7, 12/30/11, 2 pp.
XXX. Subpoena to Principal, 12/30/11, 3 pp.
XXXI. Subpoena to Dr. , 12/30/11, 2 pp.
XXXII. Subpoena to , 12/30/11, 2 pp.
XXXIII. Email from , 1/3/12, 2 pp.
XXXIV. Email from IHO Wolman, 1/3/12, 2 pp.
XXXV. Email from , 1/3/12, 4 pp.
XXXVI. Email from IHO Wolman, 1/3/12, 3 pp.
XXXVII. Email from , 1/3/12, 1 p.
XXXVIII. Email IHO Wolman, 1/3/12, 1 p.
SIX. Email from , 1/3/12, 1 p.
XL. Email from IHO Wolman, 1/3/12, 2 pp.
XLI. Email from , 1/3/12, 4 pp.
XLII. Email from IHO Wolman, 1/3/12, 1 p.
XLIII. Email from IHO Wolman, 1/3/12, 4 pp.
XLIV. Email from IHO System, 1/3/12, 1 p.
XLV. Email from IHO System, 1/3/12, 2 pp.
XLVI. Email from IHO Wolman, 1/3/12, 2 pp.
XLVII. NYSED IHO Case Search, 1/3/12, 2 pp.
XLVIII. NYC Impartial Hearing System Case Details, 1/3/12, 2 pp.
XLIX. Email from IHO Wolman, 1/3/12, 1 p.
L. Email from , 1/3/12, 1 p.
LI. Reissued Subpoena to CSE, w/ fax confirmation, 1/18/12, 3 pp.
LII. Subpoena to , 3/6/12, 2 pp.
LIII. Email from IHO re Compliance Date Extension, 1/3/12, 1 p.
LIV. Email from IHO re Compliance Date Extension, 1/31/12, 1 p.
LV. Email from IHO re Compliance Date Extension, 3/5/12, 1 p.
LVI. Email from IHO re Compliance Date Extension, 4/11/12, 1 p.
LVII. Email from IHO re Compliance Date Extension, 5/7/12, 1 p.
LVIII. Email from IHO re Compliance Date Extension, 5/23/12, 1 p.
LIX. Email from IHO re Compliance Date Extension, 628/12, 1 p.
LX. Interim Order on Pendency, 11/22/11, 4 pp.
LXI. Closing Brief for te Department of Education, 7/26/12, 27 pp.
LXII. Petitioner’s (Revised) Post-Hearing Brief, 7/31/12, 32 pp.
LXIII. Emails from IHO, , and , 8/9/12 and 8/11/12, 2 pp.
LXIV. Subpoena to Parent, 3/6/12, 2 pp.
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Board of Education of the City of New York 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.
Footnotes
[1] In 2004, Congress reauthorized the Individuals with Disabilities Education Act ("IDEA") as the IDEIA. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. Throughout this decision, statutory references will be to the IDEIA, except when quoted in judicial decisions or other sources as the IDEA.
[2] The extended compliance date for issuing a decision in this proceeding is August 10, 2012. On August 9, 2012, I sent an email to the parties indicating that the decision was likely to be three days late due to a technical problem in my office (printer broke down and needed to be repaired or replaced) (IHO Exh. LXIII,).
[3] The Hearing Record does not include compliance date extension documentation from prior to my December 28, 2011 appointment as IHO. I was not provided with that documentation and am therefore unable to include it in the Hearing Record.
[4] The Student, who receives services on an extended (twelve month) school year basis, continued to attend during the Summer of 2011.
[5] Having had the opportunity to assess the credibility and reliability of the testimony of the various witnesses, I note that I found the Parent’s testimony to be credible and reliable and I found the testimony of some of the DOE witnesses (in particular, ) to be lacking in sufficient indicia of credibility and reliability. When the Parent’s testimony conflicted with the testimony of one of the DOE witnesses, I gave more weight to the Parent’s testimony and rejected the conflicting witness testimony.