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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: February 2, 20
February 7, 20
Actual Record Closed Date: March 7, 20
Hearing Officer: John J. Naun, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 20
For the Student:
Attorney
Attorney
parent
For the Department of Education:
CSE Representative
IEP Witness (Via Telephone)
Classroom Teacher (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 20
For the Student:
Attorney
Parent (observing)
parent
School Principal
Special Education Teacher
For the Department of Education:
District Representative
The parents requested a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) challenging the placement of their child for the 2011-21 school year based upon challenges to the substance of the proposed program/placement and various procedural violations allegedly committed by the Committee on Special Education (“CSE”) in the Individualized Education Program (“IEP”)/placement process.
BACKGROUND
The boy is approximately years old and is classified as . He has attended the same school for since the beginning of the 2010-20111 school year. When the challenged IEP was created on May 11, 2011 a teacher and administrator from the school participated in the CSE meeting via telephone. The CSE in the IEP provided a month school year and accepted the request of the parents to place the child in a two month summer program in 2011 (“A”) The school (“B”) in which the parents seek to retain the boy is only a ten month program and the school staff and parents therefore recommended the another school placement for students with (“A”) for July and August so that the boy could complete the required month cycle. The summer program at A had a staffing ratio substantially similar to the staffing ratio of the month school placement recommended by the CSE school –i.e. . The CSE, however, while agreeing to accommodate the parents and school staff’s recommendations as to the summer program with its similar staffing ratio to the school, did not accept the ten month school placement which the boy was attending and which the parents sought to place him in during the 2011-20 school year. The CSE instead placed the boy in a special class for in a specialized school. The parents visited the school placement and for various reasons, including specific dissatisfaction with the school staffing ratio, which they claimed inappropriate to the boy’s needs, claimed this school placement in a class denied their son of a free appropriate education (“FAPE”).
It should be noted that the DOE in a prior school year had placed the boy in yet another different school for in but the parents apparently became dissatisfied with that placement and unilaterally withdrew the child to place him in his present school B where his sister is in attendance.
THE IEP
The IEP supports the fact that the boy has in , and , , as well and skills. The boy, who is apparently , and with lessons taught in small groups. None of these disabilities or needs were challenged. The IEP recommended transportation, and related services which included a paraprofessional who was assigned to give the boy individual attention. was provided ( ) ( ) and and ( ).The parents did not challenge these services except that they argued that minute sessions were more appropriate. It was noted that various attempts were made to evaluate the boy with without success. The boy’s various skills and abilities were therefore recounted in an anecdotal way using detailed school teacher reports and inputs. The IEP also recounts the fact that the boy has a and . It was agreed that the IEP goals were developed based upon the school teacher reports detailing the boy’s progress and teacher input. The school administrator at one point noted that she wrote them. None of this input was challenged at the CSE meeting. The school witnesses testified they had great input in establishing the goals did not challenge the substance of the goals but noted that the goals were specifically geared to the school’s structure and not the structure of the school.
THE TEACHERS
A teacher from the school proposed placement designated in the IEP testified. She has a MS in Psychology from NYU and a special education teacher’s license and has ten years of experience in her position. Based upon her testimony and response to the questioning of both sides, the teacher seemed capable and informed. The teacher indicated she always does her own classroom assessments of entering students using the ABLLS, the Assessment Limited Vocabulary Language Survey. She stated that she also has an available assessment coach who comes to her class once a week. There is also an experienced paraprofessional for assistance to the boy. ABA is provided along with other services such as . She stated she reviewed this boy’s IEP and concluded that, based on her experience, he is very similar to the other students in her class. In September, 2011 she could have taken the boy since she only had students at the time. She gave a detailed explanation of her students’ school day and curriculum which began with a . She noted that her school filled the IEP requirement for a twelve month program. When asked, she opined that the student’s record clearly indicated that he needed to be placed in a month program. She also noted in response to another question, that the school has children who come from the same area as this student. The school has classes with sections of classes.
Upon cross examination the witness noted that she had the testing and other reports from the boy’s school in front of her and knew these results.
The school testified. She coordinates CSE reviews. The witness testified recalling that the boy was recommended for a month program but that the school the boy was attending, chosen by the parents only provided ten months of instruction. In this context of the inadequacy of the ten month program, she stated the parents requested that the CSE approve another school for the summer months where the boy was already accepted. The CSE agreed to the parents’ request for the summer placement to complete the month cycle. The psychologists stated that the CSE had a class observation made by a CSE member and that the members evaluated the various detailed documents submitted by the boy’s parents and school. She noted that the CSE had the (“ ”), (“ ”) and reports as well as a behavior modification report by the school. Based upon the all the these documents and parental and school input, the CSE recommended an IEP with behavior modification, the assignment of a paraprofessional and the various indicated in the IEP. There was no disagreement regarding the related services.
There were two witnesses from the school (B). One was the classroom teacher and the other was an administrator from the school. They both attended the CSE IEP meeting via telephone. The administrator noted that she was busy that day and had a lot of meetings. (Tr. 109) The administrator noted that her school sends approximately five students to the summer program so that they can complete their month placement. She stated that one of the reasons she and the parents rejected the school placement was the staffing ratio. She said she was familiar with the goals in the IEP because “we wrote them.” (Tr.113) However, she added the criticism that they were meant for a placement and not . She also noted that the IEP provided for minute sessions whereas her school provided sessions of a minute length. Both schools provided for on site.
The witness stated that she signed an enrollment contract with the parents. It had to be before May 15, 2011—even though there was no date on the contract. Intake was completed in July and August. The contract specifically mandated a no refund payment of $79,000.00 but she noted that if possible, the school would in practice not seek to collect the money if they had a replacement. The administrator stated she visited the proposed school placement with the parents to advise them. She does the same for several parents in her school. In fact, upon questioning she noted she did such visits that year. Upon cross examination with apparent hesitation she appeared to reluctantly admit that she never recommended a school placement as a result of these visits. She acknowledged upon cross examination that at the times she visited the schools to evaluate them, the parents of the children had already enrolled the students in her school and signed the contract with the non-refundable clause. She stated, however, as a professional she could be an unbiased evaluator even though her school had a conflicting contractual interest. The administrator stated that she wrote an observation report which she admitted on cross examination was made in contemplation of possible litigation.
The witness agreed that the class she observed was not the particular class the child would attend beginning in September but comprised of students from a prior school year. She saw students “stimming” in the class she observed and she thought the students were functioning at a than this student.
The school administrator witness stated the boy in her school. His “ ” . (Tr. 143) He was to and is . She was asked why the boy is in her ten month program, if he has such as she indicated, and she responded by stating that we felt a ten month program is appropriate for the child. However, in the context of this initial statement that the ten month program was sufficient, she did admit she recommended the summer placement as well which resulted in a month placement. She then stated the resulting month program was appropriate. (Tr.153) At one point, as noted above, she appeared to be evading answering a direct question which she apparently did not want to answer. (Tr. 156)
The boy’s school classroom teacher testified. The class has students, teacher, teacher assistant and “instructors”. The teacher assistant is in charge when the teacher is not there. The witness did not know if the teaching assistant had a college degree. (Tr.170) She trains the “instructors” who provide direct instruction. She described in detail the instruction of the boy during the school day. He needs in getting his , , and . (Tr.185) She participated in the CSE meeting and noted that the boy needs the instruction provided by her school. He has a functional age and the class has a age span. (Tr.216) The witness stated she had almost with the boy’s teaching staff in his separate school summer program. There was apparently no plan to go and come back from the summer placement school and no reference to the possible impact on the boy of the change in the boy’s program and staff and any impact on his education. She prepared no material for him to work on in the summer school after the ten month school year. She apparently did not seek nor receive any follow-up from the summer school placement. Although she conceded it was important to know what he did in the summer program, she admitted had no knowledge of his summer program. She was not aware that the summer program which was recommended by her school administration was .
The mother testified that her son in the school. He showed in and . She stated that when she visited the proposed school placement she found the for her son. (Tr.252) She heard that child in the class . In summary, she did not believe the school could provide instruction for her child.
FINDINGS OF FACT AND DISCUSSION
The DOE has the burden of proof that it has provided the child with a FAPE. A FAPE includes special education and related services designed to meet the student’s unique needs provided in conformity with a written IEP. 34 C.F.R.Section 300.17 [d]. The IEP and placement must provide personalized instruction with sufficient support services to permit a child to benefit educationally from instruction. Board of Education vs. Rowley, 458 U.S.176 at 203. The IDEA regulations do not detail any specific level of educational benefits that must be provided through an IEP. Walczak v. Florida Union Free School District, 142 F. 3 119 (2d Circ. 1998).The school district is not required to maximize the potential of a student with disability which is understandably the goal of the parents. It is required that there must be the potential for progress and not regression. The IHO using this criteria, determines that the DOE has proven that the subject IEP provided a FAPE. The parents and their advisors participated in the CSE, their detailed written input was given substantial weight in developing the goals and the level of the child’s academic achievements and functioning. Even a suggested unilaterally selected summer program was agreed to by the CSE. A separate paraprofessional was provided as well as all the boy’s other related services. There was no complaint with the related services except for the minimal issue minute sessions versus minute sessions which seem to be geared to the way the school day is broken down into segments at the school. He was placed in a class dedicated to instruction for students with students of similar needs, a qualified teacher and assistants. The curriculum and program in the school seemed to be well planned and capable of being adjusted to the particular needs of each student. There were no substantial procedural errors in the process which adversely affected the outcome. The parents’ claims that there was insufficient evaluative material, the failure to have a district rep and the allegation that the IEP meeting was limited to a summer placement are without substantial merit and in any event had no substantial adverse impact on the boy’s program. Parental input on the child’s functioning and summer program were acceded to and demonstrating that the parents participated in a meaning full way in the CSE meeting. No witness stated any facts or information that they were prevented from presenting to the CSE. The school administrator had several IEP meetings on her calendar the same day which could indicate why this meeting may have been briefer than others. In any event there was no evidence or reference to any specific facts as how the time this CSE spent on the IEP impacted adversely on the boy’s program.
Having found that the DOE proved its case in providing a FAPE, there is no need to discuss whether the school is appropriate. However, it should be noted that the school is for only ten months while everyone eventually agreed the child needs a month program. The month program had to be provided almost as an afterthought by sending the student to yet another school with no apparent coordination or interchange between the schools. The boy was made to fit the month program of the school. And, in addition it should be noted the summer school selected by the parents and school administrator has the same substantial staffing ratio as that provided in the school placement yet the parents and their witnesses somewhat incongruously claimed the same staffing ratio was inadequate in the school while effective in their chosen school.
There is no need to address the issues of equities regarding parent cooperation.
Therefore based upon the forgoing, it is ordered and found that:
1. The DOE met its burden of proving it provided the child with a FAPE; and,
2. The parents request for tuition for the school is denied.
So Ordered,
Dated: March 8, 20
JOHN J. NAUN, ESQ.
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
PARENT
A. Cover Letter, Impartial Hearing Request and proof of transmission 10/21/11, 7 pp
B E-mail to with attachment, 11/14/11, 2 pp
C Fax from CSE, 11/14/11, 3 pp
D E-mail to , 10/27/11, 2 pp
E Letter to and proof of transmission, 8/18/11, 6 pp
F Letter to and proof of transmission, 8/ /11, 3 pp
G Report, 5/2/11, 6 pp
H Report, 4/29/11, 1 p
J and Annual Review, /10, 2 pp
K Educational Progress Report, 2/16/10, 3 pp
L Report, 2/13/10, 3 pp
M DIR Floortime Report, / /10, 3 pp
N Weekly Schedule, 2011-20 ,1p
O Enrollment Contract, 2011-20 ,1p
P Affidavit, 9/27/11, 1 p
Q Attendance Report, 9/27/11, 1 p
R Informational Materials, undated, 26 pages
S Report of 6/21/11 School Visit, undated, 1 p
T Individual Education Plan, /16/10, 16 pp
U Individual Education Plan, 3/3/10, 23 pp
V Progress Report, 11/18/11, 7 pp
W Summary, 7/30/11, 8 pp
X Curriculum Vitae of , undated, 3 pp
Y Curriculum Vitae of , undated, 2 pp
DEPARTMENT OF EDUCATION
1 IEP, 5/11/11. 17 pages
2 Report, 11/29/10, 3 pages
3 Parental Rights Receipt, /16/10, 1 pages
4 , undated, fax date /15/10, 2 pages
5 Educational Progress Report, /16/10, 2 pages
6 Report, 2/13/10, 3 pages
7 Report, / /10, 3 pages
8 Final Notice of Recommendation, 6/13/11, 1 pages