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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 31, 2012
Actual Record Closed Date: March 14, 2012
Hearing Officer: Linda Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012
Dr. Advocate — Parents
via telephone Special Educational Coordinator — Parents via telephone — Parents
Dr., via telephone Educational Director — Parents
Dr. Chairperson’s Designee District — DOE
via telephone Teacher Assigned, CSE team — DOE
via telephone Representative — DOE
On September, 22, 2011, I was designated by the New York City Department of Education as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of (“hereinafter the student”). The hearing was convened at the request of the parent, through his advocate, Dr. which was received on September 22, 2011. On October 24, 2011, I scheduled the hearing for December 14, 2011. On November 3, 2011, parent’s advocate requested an adjournment and with the request of the district representative, I granted the adjournment and scheduled a hearing for January 31, 2012. The hearing commenced and concluded on January 31, 2012. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. The parent’s representative submitted his post hearing closing statement on March 12, 2012 by email. The district representative submitted her post hearing closing statement on March 14, 2012 by email. The current closing date is March 14, 2012 and the compliance date for issuing a decision is March 28, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence. The hearing was requested by the parent to challenge the April 5, 2011 review and recommendation of the Committee on Special Education (“CSE”) and to obtain funding for a unilateral placement at School. The parent brought the hearing seeking tuition reimbursement for the 2011-2012 school year. The School is a private entity lacking State Education Department approval. The parent brought the hearing seeking prospective payment for non-religious portion of School for the 2011-2012 school year. The tuition for School for the 2011-2012 school year was $41,400 (Exh.
F) and the parent maintained that 20 percent of instruction was devoted to religious education as the Educational Director stated that the portion of the school day devoted to the pursuit of purely religious activities was 20 percent (trans. 158). Therefore, the parent requested that Dept. of Education directly pay $33,120 for the 2011-2012 school year.
The parent allege that alleged that the Dept. of Education failed to provide a free and appropriate public education (FAPE) for the 2011-2012 school year on procedural and substantive grounds as there was no special education teacher present and CSE did not conduct current assessments (Exh. B at 1). The parent further alleged that the staffing ratio of the recommended class was too large and the related services were not sufficient to meet the student’s needs and the recommended placement at , was not appropriate because there were no girls in the proposed class (Exh. B at 2).
BACKGROUND
The student is a old girl who was classified as . The student is currently attending the in a special class with a small class size. She attended the program at grade to date.
On April 8, 2010, , , conducted a psych-educational evaluation when the student was in second grade at the who was a who was eager to do well despite of her deficits (Exh.[3] at 3). Ms. noted that the student reversed letters when reading and writing (Exh. first grade level in her academic subjects based in the educational assessment (Exh. 1 at
3) The IEP further indicated that the student required a staffing ratio of 12:1 or 12 children and 1 special education teacher. The IEP indicated that the student was bilingual in Yiddish and English who had mild receptive and and difficulty focusing due to impulsivity (Exh. 1 at 4).
THE POSITION OF THE PARTIES
The Dept. of Education has recommended that the student be placed in a special class in a community school and receive related services of ) and ( ). The parents disagreed with the Dept. of Education’s placement and have unilaterally placed the student at the for the 2011-2012 school year and requested the Dept of Education directly pay the for the secular portion of tuition.
THE DEPT. OF EDUCATION’S CASE
Dr. , the CSE District representative, was present on behalf of the Dept. of Education. He maintained that the student was appropriately placed in the special class with a staffing ratio of and FAPE was offered for the 2011-2012 school year (IHO Exh. II at 1). Dr. presented his first witness, Mr. , a teacher assigned to CSE. Mr. , a special education teacher and with licenses in special education and regular education employed by the Dept. of Education since 1984, testified he was the special education teacher in various setting including resource rooms, special classes, collaborative team teaching and general education (trans. 6). He was present at the April 5, 2011 review and signed as general education teacher and district representative (trans. 9). He reviewed the members who attended the April 5, 2011 review and noted that the parent participated by telephone, as did the student’s then current special education teacher, (trans. 10). He noted that , the School psychologist also participated. He further noted the April 5, 2011 was an annual review and that no parent member was present because the parent member was not available (trans. 13). He recalled that the team reviewed the progress reports and the psycho-educational evaluation conducted on April 8, 2010 (Exh. 3) and noted that the student was assessed by the Woodcock-Johnson, Third Edition (“WJ-III”) and achieved a equivalent in passage comprehension and 107 in applied problems (trans. 14). He opined that the first 2 annual goals on page 7 of the April 5, 2011 addressed the student reading comprehension skills and the last 2 goals on page 7 addressed her math skills (trans 17). He maintained that related services of were recommended to be continued and that no member disagreed with the related services (trans. 19). He recalled that the team considered the observation (Exh. 2) and noted the student was able to keep pace with the teacher and interacted with her peers and the team considered the (Exh. 3) and recommended that the classification of and a special class with a staffing ratio of in a 10-month program (trans 22). He further recalled that no member disagreed with the classification and program (trans. 23).
On cross Mr. recalled that he was able to serve both as district representative and regular education teacher because he was familiar with all the programs offered in the district (trans 25). He stated that the WJ-III indicated the student’s grade equivalent was in letter word, spelling score, passage comprehension score (trans. 26) and decoding (trans. 34). He maintained that the student’s current reading level was based on the psycho-educational evaluation, teacher reports and the student’s then current teacher’s estimate (trans. 29). He further maintained that the student’s then current teacher was present at the April 5, 2011 IEP review during the discussion of the student’s present level of performance and academic management needs and provided the information to the CSE of the present level of performance and academic management needs at (trans. 40).
Mr. , Special Education Teacher at for 3 years, testified that he had a master’s degree in special education and was a licensed special education teacher with a bilingual certification in English and Spanish (trans. 44). He noted that his was recommended for the student for September 2011. He stated that the reading levels of the students in his class ranged from and the math levels were low second grade to high third grade (trans. 46). He further noted that the school had related service providers for (trans. 48; 61). He described a typical day included a structured, supervised, instructional breakfast and blocks of instruction where he provided modeling for a period of 50 minutes each for reading, writing, math. He stated that science instruction was taught by a person who was licensed and certified in science (trans. 53). He noted that the student received specials including gym and he used a by Orton-Gillingham and he was trained in the Wilson program (trans 54). He stated that there was also a paraprofessional in the class and there were 4 children. He further stated that there staffing ratio of his class was 2 adults to 4 children (trans. 57). He recalled that 4 children in his class were classified as learning disabled. He reviewed the student’s reading and math scores listed in the April 5, 2011 IEP and noted these scores matched a child in his class (trans. 59). He opined that he would have been able to implement the goals and services listed in the April 5, 2011 IEP and he could address her reading and math skills and the student could have received special education instruction in his class (trans. 61).
On cross Mr. stated that on the first day of school there were 3 boys and a girl attended his class in October 2011 (trans. 62). He stated that when the parent visited on September 12, 2011, there were only boys in his class (trans. 64). He stated that he worked toward meeting the goals in reading by teaching the main idea or modeling and then he or his paraprofessional would break down the activity to children who worked at a lower level so they could participate and be included in the lesson (trans. 66). He stated that he assessed his students with the to ascertain the students’ and charted progress on objective assessments on a quarterly basis (trans. 68; 74). He further stated that there was a fifth grade student who read on a first grade level (trans. 71).
THE PARENT’S CASE
Mr. , the student’s father; Dr. , the parent’s representative; Ms. , the student’s teacher and Dr. , Education Director at , testified in support of the parent’s claim for direct payment for the unilateral placement of the student at the . The parent stated that he recalled that he visited the proposed class, but he did not remember the date he visited. He opined that the proposed class had only boys (trans 114). He stated that he could not place his daughter in a class of 8 to 12 boys (trans 117). He further stated that the lunch room was noisy (trans 115).
On cross the parent stated that his daughter attended the for the 2009-2010 to 2011-2012 school years (trans. 125). He stated that the was an all-girls . He further stated that he would not send his daughter to a school with boys and girls (trans. 130). He maintained that although it was important for him to send his daughter to a school with religious instruction, he would consider a public school program if it was as good as the P’TACH program (trans 134-137). He stated that his daughter never attended a public school (trans. 140). He further stated that he hoped to pay the tuition of of approximately $31,000 despite the fact that he earned approximately $10,000 for the 2011 year (trans. 141). He noted that the offered scholarships to people who were financially unable to pay the tuition (trans. 142) and for the 2011-2012 school year he paid nothing (trans. 147).
Ms. , the special educational coordinator for , the student’s program during the 2011-2012 school year, testified that she was a licensed special education teacher and was responsible for the special education program in the school (trans. 80). She stated during the 2011-2012 school year there were 5 children including the student with a teacher and a teacher assistant (trans. 81). She maintained the student was assessed in April 2011 and the student scored between 2.1 and 2.8 in reading and 2.8 to 3.2 in math (trans. 83-84). She noted that the student received during the 2011-2012 school year (trans. 84). She noted that the student was not able to be mainstreamed because she had issues with impulsivity and disorganization (trans. 85). She further noted that her school had 4 self-contained special classes with no more than 10 children and a teacher and a teaching assistant per special class (trans. 89). She opined that the student progressed in her reading at the first grade level for the 2010-2011 school year to a reading level of 3.2 in December 2011 (trans. 93). She further stated that the student’s teacher who participated in the April 5, 2011 IEP meeting did not know the student’s read ability even thought she taught the student language and reading (trans. 94-95).
On cross Ms. stated that there were 5 children in the student’s class in a combination fourth/fifth grade (trans. 98). She further stated that the student’s academic teacher from 12:45 pm to 4:15 pm was certified and licensed in special education and the religious portion of the day was 8:45 am to 10:30 am (trans. 99). She acknowledged that the student’s class used both trade books and text books (trans. 102). She noted that Ms. , the student’s then current teacher provided information to the CSE from the school progress report (trans. 106).
Dr. , the Educational Director for the , testified that he was familiar with the financial arrangements of the student with (trans. 155). He stated that the tuition was $24,000 and $6,000 additional costs and the parents have not made any payments (trans. 156). He stated that the parents did not have a scholarship and were responsible to pay the full amount (trans. 156). He further stated that the amount of time devoted to religious activities was 15 to 20 percent (trans. 157). He noted that all the religious instructors were licensed special education teachers (trans. 158). The parent’s advocate stated that the parents were seeking direct payment of the tuition minus 20 percent (trans. 158).
On cross Dr. stated that he considered the parents owned the tuition for the 2010-2011 as a debt the parents were obligated to pay (trans. 160). He further stated that he was aware that the parent’s annual salary was $12,000 and the tuition was $30,000 and he was not able to explain how the parents could pay, but he expected that parents to pay (trans. 163). He noted that scholarships were offered in cases of extreme hardships (Id.).He further noted that the student received related services of counseling twice a week from a licensed social worker and twice a week from licensed speech pathologist (trans. 168) and the sum of the related services was $6,000. (trans. 169).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]). The district bears the initial burden of prong one pursuant to legislation. See Chapter 583 of the Laws of 2007. The district must establish prong one, that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (see, e.g., IEP in accordance with the procedural and substantive requirements of Federal and State regulations. (34 CFR 300.343-346, 8 NYCRR 200.3, 200.4 and 200.5).
To meet its burden, the district must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child. Further, the fact that the facilities selected by the parents to provide special education services to their child is not approved as a school for children with disabilities by the State Education, as is the case here, is not dispositive of the parents’ claim for tuition reimbursement. (Florence County School District Four et al. v. Carter, 510 U.S. 7 [1993]).
The parents asserted many procedural flaws in the April 5, 2011 IEP: there was no special education teacher; no parent member and no current assessments of the student’s current reading level.
The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Educ., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007]).
In order to be procedurally correct the CSE which met on April 5, 2011 would have to have been constituted in full accord with the provisions of the Education Law Section 4402, as well as the provisions of the regulations of the Commissioner of Education of the State of New York Part 200.3(a). Pursuant to 8 NYCRR 200.3(a)(1)(ii) a special education teacher must participate in the CSE meeting when the student is or may be participating in the special education environment. I find that testimony adduced at the hearing established that the person who signed as the district representative and regular education teacher was a licensed and certified special education teacher since 1984 who taught in a variety of special education programs and was familiar with all the special education programs offered by the student’s home district. I further find that the student’s then current teacher at who participated by telephone was a special education teacher. I note that even though the person who signed as the regular education teacher, the student would not have participated in regular education.
The parent’s advocate asserted that there was no parent member. I find that the parent did not waive the parent member in writing as required by 8 NYCRR 200.3(a)(1)(viii). However, I find that there was no evidence that loss of the parent member resulted in the loss of an educational opportunity. Moreover, I find that there was no evidence that the lack of an additional special education teacher or parent member for the April 5, 2011 IEP team seriously infringed the parent’s opportunity to participate in the IEP formulation process. I find that there was no evidence that the lack of an additional special educational teacher, or parent member for the April 5, 2011 IEP team caused a deprivation of educational benefits. Therefore, I find that the April 5, 2011 IEP was not procedurally flawed because all the required members were present.
The parent asserted that the student was not appropriately placed in the proposed class was contradicted by the testimony of the teacher of the proposed class. Testimony adduced at the hearing established that the student would have been appropriately placed in the proposed class with children with similar academic, social development, physical development and management needs as required by the Regulations of the Commission of Education (8 NYCRR 20.6(a)(3). Further, I credit the testimony of the proposed teacher that there were less than 12 children in the class with during the 2011-2012 school year.
The parent asserted that the student could not have been appropriately placed with only boys in the proposed class when the parent visited the proposed class on or about September 2011. The SRO has ruled that the proposed placement composed of only boys was not inappropriate in terms of the gender needs of a female student. The SRO held that the gender composition of the class did not render the class inappropriate for the student in Application of the New York City Dept. of Educ., Appeal No. 10-036.
The parent asserted that the CSE did not assess the student to ascertain her present levels of functioning in terms of her reading I find that minutes of CSE meeting compiled by CSE during the April 5, 2011 indicated that the team reviewed the observation (Exh. 4) and the CSE reviewed the management needs of the student. I note there was conflicting testimony from the coordinator as to the student’s reading level during the April 5, 2011; however, I credit her testimony that the student functioned in the first grade level and I find that her testimony was supported by the evaluation dated April 8, 2011. I find there is no evidence in the hearing record to suggest that the student’s education or related services warranted reevaluation. The evidence supports a conclusion that the evaluative data relied upon by the CSE was sufficient and the CSE was able to correctly determine the student’s then current academic needs and to develop an appropriate IEP.
Based on the foregoing I find the district established that FAPE was provided to the student during the 2011-2012 school year.
Having found that the district established the first prong, I need not address the second prong, however, I note that the parents failed to establish the appropriateness of their placement at the . To meet the second prong, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education. The fact that the facility selected by the parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent’s claim for tuition reimbursement. Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459
F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
I find that there was no evidence presented by the parent to establish how met the unique needs of the student. There was no documentation submitted as to any formal educational assessments. Testimony and evidence adduced at the hearing established that the . While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the appropriateness of the parental placement may be considered in determining whether the parents’ placement is appropriate. See M.S. v. Bd. of Educ., 231 F.3d 96 2d Cir. 2000
Based on the foregoing, I find that that the parents have not met their burden regarding the unilateral placement of the student at the for the 2011-2012 school year.
Having found that the parent’s placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the parent’s position. However, I credit the parent’s statement that he considered it important for his daughter to attend a religious school and would not consider a public school with . This statement alone would indicate that the equities did not favor the parent as there was no evidence submitted that the parent would have considered a public school placement. Further, I do not credit the testimony of the staff at the who considered the tuition for the 2011-2012 school year was a debt. There was no evidence of a policy of collection. I further credit the testimony of the parent and I find the parents failed to establish that their income of approximately $12,000 was sufficient to pay the tuition of $30,000. I further find that there was inconsistent testimony to establish the tuition of the for the 2011-2012 as the Educational Director stated that tuition was $30,000 and the Affidavit of the Associate Registrar dated January 24, 2012 indicated that tuition for the 2011-2012 was $41,400 (Exh. F). Lastly, I do not credit the parent’s testimony that he considered the tuition for the 2011-2012 school year was a debt.
Based on the foregoing I deny the parent’s request for direct payment for the nonreligious portion of the tuition at the for the 2010-2011 school year. Dated: March 22, 2012
_________________________
LINDA AGOSTON, ESQ.
Impartial Hearing Officer LA: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 ON JANUARY 31, 2012
A Letter, 8/23/11, 3 pp. Parent
B Impartial Hearing Request, 9/22/12, 4 pp. Parent
C omitted Parent
D omitted Parent
E Tuition, 9/15/11, 2 pp. Parent
F Affidavit Letter, 1/24/12, 1 p. Parent
G Attendance Record, 1/25/12, 1 p. Parents
1 IEP, 4/5/11, 15 pp. District
2 Observation, 3/15/11, 1 p. District
3 Evaluation, 4/8/10, 8 pp. District
4 CSE Minutes, 4/5/11, 1 p. District
5 Final Notice of Recommendation, 6/29/11, 1 p. District
POST HEARING SUBMISSION
I Dr. ’s Closing Statement, 3/5/12, 13 pp. Parent
II Ms. ’s Closing Statement, 3/14/12, 11 pp. DOE
Footnotes
[3] at 1). Ms. used the WASI and noted her Full scale IQ score was and her verbal IQ was and her Performance IQ was (Id.). Ms. found that the student performed in the mid to upper first grade level in academic areas. She found the student’s were in the range (Exh. 3 at 3). The student was observed on March 15, 2011 and the social worker who conducted that observation stated that the student was in Hebrew Class and the student followed directions and participated in class; however, the student was impulsive and moved around. The observer noted the student could work independently, but was not able to be mainstreamed due to (Exh. 2 at 1). The CSE developed an IEP on April 5, 2011 and classified the student as learning disabled and recommended a special class in a community school with a staffing ratio of for a 10-month school year, special education transportation and related services of individual (“ ”) twice a week for 30 minutes per session and (“SLT”) twice a week for 30 minutes per session in a group no larger than 3 (Exh. 1 at 13). The final notice of recommendation (“FNR”) dated June 29, 2012 recommended the student be placed at the (Exh. 5). The IEP indicated that the student functioned at a