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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 24, 2012
Actual Record Closed Date: February 27, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012
Advocate — Student
Parents
Principal (Via telephone) — Student
CSE Representative — DOE
CSE Teacher Assigned (Via telephone) — DOE
CSE Case Manager (Via telephone) — DOE
— DOE
On September 23, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing on September 22: (1) to challenge the alleged failure of the Committee on Special Education for District (the “CSE”) to provide with a free appropriate public education for the 2011-2012 school year and (2) to seek payment of ‟s tuition directly to special education program at a nonpublic sectarian day school in , for the 2011-2012 school year.
The hearing was scheduled to commence on November 29. The hearing was adjourned to, and conducted and completed on, January 24. A pre-hearing conference was conducted immediately prior to the commencement of the hearing on the merits. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
The parties requested an extension of the compliance date on November 29. This request was granted, and the compliance date was extended to January 5 (see IHO Ex. I [notice to parties re: factors considered and reasons for extension]) and subsequently to February 4 (see IHO Ex. II [notice to parties re: factors considered and reasons for extension]). On the record on January 24, the parties requested a final extension of the compliance date (trans. 182-183). This extension was granted, and the compliance date was extended to March 7 (see IHO Ex. III [notice to parties re: factors considered and reasons for extension]). The record closed on February 27 upon the receipt by the hearing officer of the memoranda of law submitted by both parties (IHO Exs. IV, V).
BACKGROUND
1
is an year-old boy who attends the at (“ ). This is s second school year in the program. He has been (“ ”). His
Various documents refer to as “
disability is classified as . This classification is not in dispute.
THE SCHOOL DISTRICT’S CASE
, a certified general and special education teacher who also had an advanced certificate as a school district administrator, testified that he was employed by the Department as the “teacher assigned” to the CSE (trans. 34). Mr. conducted a classroom observation of in November 2010 (Department Ex. 4). He observed in a math class of students with one teacher. There were three students in ‟s math group. They were working on equations involving division. followed directions from the teacher, participated in class, and was able to answer questions correctly. He demonstrated some Mr. testified that had a and needed (trans. 60).
A psychoeducational assessment was conducted of in January 2010 (Department Ex. 3). The CSE school administered the . attained the following scores: verbal comprehension, perceptual reasoning, ; working memory, ; and processing speed, . On the , (who was in the ) attained the following grade equivalent scores: decoding, reading comprehension, ; math calculation applied problems, The evaluator noted that had a short attention span and an “ ” and that “ ” (Department Ex. 3 at p. 3).[2]
Mr. participated in a CSE meeting for on May 16 (trans. 35; Department Ex. 1). The parent participated in the meeting by telephone, as did ‟s general education teacher from , (trans. 36). A district representative, a school psychologist and a parent also participated in the meeting. The CSE recommended that attend a general education program and receive Special Education Teacher Support Services (“SETSS”) for five periods per week in a group of no more than students and the related services of (one 30 minute period per week in a group of no more than three students) and (three 30 minute periods per week individually). Mr. stated that the team‟s recommendations were based on his classroom observation, the evaluation and the participation of and the parent (trans. 37-38). The team rejected a special education class for because it would have been “too restrictive for him” based upon the information in the evaluation and the information shared by and the parent at the CSE meeting that was functioning “about” a grade level in reading and “about” grade level in math (trans. 63-64, 67).
The minutes of the CSE meeting indicated that the parent agreed with the recommendation of SETSS with related services (Department Ex. 5; trans. 46). At the end of the meeting, the parent stated that she had concerns about the program that she could not “fully express” on the telephone. The CSE personnel tried to discuss these concerns with her and “draw out those concerns,” but the parent stated that “she would rather not discuss them” over the telephone (trans. 45-46; see also Department Ex. 5 at p. 2).
The IEP indicates, based on input at the meeting and the written teacher reports, that was reading on a grade level in reading, he was writing on a grade level, and his math skills and problem solving were at a grade level (Department Ex. 1 at p. 3). The IEP notes that “presents with significant receptive, expressive and pragmatic language deficit,” “ , needs to be refocused to remain on task and at time directions need to be repeated” and that “material needs to be reinforced and repeated before the concept/learning is mastered” (Department Ex. 1 at pp. 3-4). has difficulties with attention, organization and study skills. ‟s academic management needs . “is reported to have which at and social progress in and out of school” (Department Ex. 1 at p. 5).
The IEP includes goals in the areas of , (Department Ex. 1 at pp. 7-12).
The final notice of recommendation, dated May 16, 2011, notified the parent that was placed at (Department Ex. 6).
Mr. opined that the IEP and the placement offered to for the 2011-2012 school year would have provided with a free appropriate public education (trans. 48).
, a case manager employed by the Department at the CSE, testified that her duties included sending to parents IEPs and final notices of recommendations after CSE meetings (trans. 82). She described the process for sending out these documents: after an IEP meeting, the IEP team brings her a copy of the IEP, Ms. enters the IEP information into the computer, goes upstairs to get the placement from the placement office;, then she places the IEP with the final notice of recommendation together in an envelope, and brings the envelope to the mailroom where it is stamped and then brought to the post office for mailing to the parent (trans. 82-88, 91). Ms. stated that the final notice of recommendation is dated on the day it is created, which is also the day that it is mailed to the parent (trans. 89-90). She testified that the procedure she described for mailing IEPs and final notices is the standard procedure which she follows in all cases and from which she has never deviated (trans. 90). If the envelope is undeliverable, it is returned to Ms. by the post office. Ms. would then contact the parent to verify the address and then resend the IEP and final notice of recommendation to the parent (trans. 93-94).
THE PARENT’S CASE
Dr. testified that he was the educational director of , was a pathologist and had a doctoral degree in supervision and administration of special education (trans. 104). Dr. described as “programs at different mainstream schools for children who have ” (trans. 104-105). He stated that is not affiliated; while it runs its special education programs at in which “a portion of the day is committed to instruction,” “the organization is a program for ” (trans. 105). would provide services to “anybody who asks,” and has provided training to “ and educational specialists (trans. 106-107). A has not applied for its services (trans. 107).
Dr. stated that program at . is a in (trans. 107). ‟s teachers are for secular studies and for (trans. 144). is “making nice, steady progress in all his areas” and has “multiple needs on many, many different levels” (trans. 108). These needs include “a . . . ” (trans. 108). According to Dr. is “ in terms of that he needs a an education level” (trans. 108 and on “ (trans. 108). “does very, very nicely in the small class setting” in which he can receive “constant monitoring and feedback.” Dr. has worked on a behavior program for (trans. 108-109).
Dr. noted that the description of on the IEP was accurate (trans. 109). is “inconsistent” in his , (which translates into such as fighting) (trans. 109-110).
There are students in ‟s class with one teacher (trans. 110). Dr. opined that had not been successful in general education with SETSS at a private school due to his and (trans. 111, 155-156). In a general education class of to students, would not be able to receive the monitoring and feedback he needs “in order to ” (trans. 111, 156). Dr. opined that (trans. 133). This progress, according to Dr. , is demonstrated by a chart of ‟s November 2011 (trans. 134-135; Parent‟s Ex. H). Dr. explained that the chart shows daily , ” (trans. 134). At the end of each class period, type of “ ” (trans. 134-135). Dr. did not explain these areas further other than to say that they include “ “ ” and (trans. 135-138).
uses a reading program that includes the , “some” , and reading novels for reading comprehension (trans. 149-150). ‟s are not certified in or methodologies. A with the classroom teachers on implementing these reading programs (trans. 150). The does not work directly with (trans. 151). Math instruction is individualized (trans. 153). is (trans. 153).
provides with two periods per week of with a licensed and therapy (trans. 130-132).
The school day at is from 9:00 A.M. to 4:30 P.M. on Mondays through Thursdays and from 9:00 A.M. to 12 noon on Fridays and Sundays (Parent‟s Ex. E). ‟s schedule at includes a 90 minute prayer and religious studies period at the beginning of each school day. The schedule includes periods for reading, writing, gym, music, art, lunch, recess, spelling, math, science and social studies.
The CSE had convened on December 14, 2010 (Parent‟s Ex. C). The parent participated in this meeting by telephone. The program and related service recommendations were the same as those made at the May 2011 meeting. The parent testified that she received in her mail the IEP created at the December CSE meeting (trans. 158). A placement letter was not included in the envelope. The parent participated in the May IEP meeting by telephone (trans. 159). She stated that she did not receive a copy of the IEP from that meeting in her mail, nor did she receive a final notice of recommendation (trans. 158-160).
The parent informed the CSE by letter dated August 24 that the December IEP was deficient and that she was placing at for the 2011-2012 school year (Parent‟s Ex. A).
The “ Elementary” enrollment contract states that tuition for the 2011-2012 school year is $ and that related services cost an additional $ (Parent‟s
Ex. D).3 The parent signed this document. The document is not dated. The parent has paid $ towards this tuition (Parent‟s Ex. J).
FINDINGS OF FACT AND DECISION
I. The Parent‟s Claims
A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents‟ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‟ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).
A. The Appropriateness of the School District‟s Program for The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-
121. A free appropriate public education includes special education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley,
The contract also lists charges for registration, dinner and These charges were not explained.
458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.
The parent alleges that she did not receive a final notice of recommendation for for the 2011-2012 school year and that, therefore, the Department did not offer a placement for . The Department argues that since its employee, Ms. testified credibly as to the routine office practice for sending out IEPs and final notices of recommendation and testified that she never varied from this routine, then the presumption of mailing and receipt by the addressee applies (Department Closing Statement, at p. 4). As the State Review Officer stated in Application of a Child with a Disability, Appeal No. 06-035:
New York law provides a presumption of mailing and receipt by the addressee where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (Nassau Ins. Co. v.
Murray, 46 N.Y.2d 828, 829 [1978]). "As long as there is adequate testimony by one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing” (In re Lumbermens Mutual Casualty Co. v.
Collins, 135 A.D.2d 373, 374 [1st Dep't 1987] . . . . In order to rebut the presumption of mailing and receipt, the addressee must show more than the mere denial of receipt and must demonstrate that the sender's “routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed”
(Nassau Ins. Co., 46 N.Y.2d at 829-30).
In this case, the Department has presented testimony to demonstrate that the presumption of mailing and receipt by the addressee applies. Ms. ‟s credible testimony established that there was a standard office practice for sending out IEPs and final notices of recommendations and that she always follows this practice. As per this practice, Ms. would have mailed the final notice of recommendation dated May 16 to the parent on May 16. I credit the testimony of Ms. with respect to the standard practices of the Department and infer that the final notice of recommendation was mailed to the parent and that she received it. As a result, the Department establishes that it made an offer of placement for for the 2011-2012 school year.
A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189.
An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The Department did not satisfy its burden of proof in establishing that the program recommended for in the IEP was appropriate. The testimony of Mr. , the information in the classroom observation and the assessment, and the input from the participants at the May CSE meeting as recorded in the IEP, indicated that has the following special educational needs: difficulties, problems with and grade level academic performance, and significant . Based upon the information available to the CSE (and included in the IEP), needs the following special educational strategies and , of , and . The Department did not demonstrate how a general education class with SETSS and related services would address ‟s special educational needs or provide him with the special educational strategies and interventions he needed. There was no testimony or other evidence about whether or how the general education teacher would provide these interventions and strategies in the general education classroom or whether or how the general education teacher would address the goals set forth in the IEP. There was no testimony or other evidence about whether or how the SETSS teacher would provide these interventions and strategies in the SETSS program or how the SETSS teacher would address the goals set forth on the IEP. There was no testimony about whether or how the related services providers would implement the set forth in the IEP. As a result, there was not sufficient evidence from which to conclude that the program recommended by the CSE would have provided an appropriate special education for .
The Department did not satisfy its requisite burden of proof that it offered a free appropriate public education for the 2011-2012 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.
B. The Appropriateness of
The parent bears the burden of proof concerning the appropriateness of for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459
F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents‟ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child‟s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child‟s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F. 3d at 364 (emphasis added).
The parent failed to demonstrate that the program addressed ‟s needs. While Dr. was credible witness, he provided very little testimony about the actual education program provided to . Dr. described ‟s needs but then did not provide information about how these needs were addressed at except to state that was placed in a and received “constant monitoring and feedback” through a behavior plan. The parent did not present evidence with respect to how ‟s , deficits, and academic delays were addressed by his teachers at While Dr. stated that was placed in a small class, he did not explain what the teachers did for in that small class or how or what they taught him. The parent did not present evidence with respect to the curriculum used or the academic skills taught at . The parent was unable to establish that the “educational instruction” provided to at was “specially designed to meet [his] unique needs.” See Frank G., 459 F. 3d at 364.
Dr. talked about the behavior plan measuring ‟s performance in the areas of “safety, respect and responsibility” but he did not explain these areas other than to state that they involve “get[ting] with the kids,” “ with his teachers” and completing his work. He did not describe whether the “constant monitoring and feedback” of the plan related to ‟s and —the main areas of ‟s needs.
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence does not support a finding that the program at was appropriate for . As a result, the parent is not entitled to an award of relief in this proceeding.
C. Equitable Considerations
With respect to the third Burlington criterion, whether equitable considerations support the parent‟s claims, the evidence establishes that the parent cooperated with the CSE by participating in the December and May CSE meetings by telephone. However, she did not participate in the May meeting in a manner to foster the “collaborative process” of creating an education program for . See Schaffer v. Weast, 546 U.S. 49, 51 (2005). The parent did not dispute that she refused to share the concerns she had with the CSE about the program. If the parent had concerns about the program, she should have expressed them to the CSE in order for the CSE to (a) have complete information about , (b) address those concerns with the parent and (c) change, if found appropriate after consideration of those concerns, the IEP.
II. The Department‟s Establishment Clause Argument
The Department of Education argues that any direct payment of tuition by the Department to the program attends, at , would violate the Establishment Clause of the United States Constitution (trans. 11-12; Department‟s Closing Statement, at pp. 13). The parents respond that there is no such violation of the Establishment Clause if the Department were to forward payment for ‟s tuition directly to (Parents‟ Closing Statement, at pp. 11-14). The parents look, inter alia, to a decision of the State Review Officer, Application of the New York City School District Board of Education, Appeal No. 96-14 at pp. 7-9, to support their position. This decision involved a parent‟s request for reimbursement for tuition the parents had paid to the sectarian school—at which the child did not receive any religious instruction. The instant proceeding involves a request of the parents for payment directly to the sectarian school at which does receive religious instruction. While the issue of religious instruction for a portion of the school could be addressed through discounting the tuition for the portion of the school day dedicated to religious instruction and celebration, see Application of the New York City Department of Education, Appeal No. 11-037 (in reimbursement case, reducing tuition is a proper mechanism to take into account that a portion of the school day is devoted to religious instruction and celebration), the question as to whether this mechanism is a sufficient measure to avoid a violation of the Establishment Clause where the parents are asking the Department of Education to forward tuition payment directly to the school is not yet resolved. Since I can render a decision in this proceeding on other grounds, I should not decide this important Constitutional question at this time.
Therefore, for all the above reasons, it is ordered that:
The parent‟s request for payment of tuition to is denied. Dated: March 1, 2012
______________________________
Impartial Hearing Officer
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 24, 2012
Parent
A Letter Notice dated 8/24/11, 3 pages
B Impartial Hearing Request, 9/22/11, 4 pages
C NYC IEP, 12/16/10, 14 pages
D Tuition Contract, 2 pages
E Class Schedule, 1 page
F Affidavit Letter, 1 page
G Attendance Records, 1 page
H Graph as of 11/17/11, 1 page
Department of Education
1 IEP, 5/16/11, 15 pages
2 School Report, undated, 2 pages
3 Evaluation, 1/12/10, 6 pages
4 Observation, 11/30/10, 2 pages
5 CSE Minutes, 5/16/11, 2 pages
6 Final Notice of Recommendation, 5/16/11, 1 page
Impartial Hearing Officer
I Email to Parties re: Extension, 11/29/12, 1 page
II Email to Parties re: Extension, 1/5/12, 1 page
III Email to Parties re: Extension 1/24/12, 1 page
POST HEARING SUBMISSIONS
Parent I Tax Return, 3/11/11, 2 pages J Payment & Attendance Documents, 1/25/12, 3 pages Impartial Hearing Officer IV Department Closing Statement 2/27/12, 7 pages V Parent‟s Closing Statement, 2/27/12, 14 pages
Footnotes
[2] The Department asserts that an updated psychological evaluation of was conducted prior to the May 2011 CSE meeting (Department‟s Closing Statement, at p. 3). Such an evaluation was not offered in evidence at the hearing.