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 Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 23, 2011
January 20, 2012
February 1, 2012
February 16, 2012
Record Close Date: February 24, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 23, 2011
Attorney (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2012
Attorney — Student
Parents
Parents
Attorney — DOE
Special Ed Teacher, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2012
Attorney — Student
Father — Student
Mother — Student
Special Education Teacher (via telephone) — Student
(via telephone) — Student
Attorney — DOE
Special Education Teacher, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 16, 2012
Attorney — Student
Parents
Director of (via telephone) — Student
Attorney — DOE
On November 22, 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 parents requested the hearing on November 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 reimbursement for, as well as prospective payment for a portion of, tuition for their unilateral placement of ”), a non-approved non-public special education school in , for the 2011-2012 school year.
A pre-hearing conference was conducted on December 23. The hearing on the merits was commenced on January 20 and continued on February 1. The hearing was completed on February 16. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
On the record on January 20, the Department of Education (“the Department”) and the parents requested an extension of the compliance date (trans. 93-94). This extension was granted, and the compliance date was extended to March 4 (see IHO Ex. I [notice to parties re: factors considered and reasons for extension]). The record closed on February 24 upon the receipt by the hearing officer of the parties’ memoranda of law (IHO Exs. II [Department’s Post-Hearing Closing Arguments] and III [Parent’s Memorandum of Law and Closing Statement]).
Background
age. His disability is classified, for the purpose of the IDEA, as . This classification is not in dispute. During the 2010-2011 school year, attended an integrated co-teaching class (“ICT”) in the in He has attended from September 2011 to the present time. The School District’s Case , a certified general and special education teacher employed by the Department at in , testified that she was teacher during the 2010-2011 school year in the (trans. 29). Ms. described the . It consists of classes with taught by both a general education teacher and a special education teacher. In and , the classes are “capped” at students on ” and ten general education students (trans. 31, 56). The program includes such services as for three 55 minutes per week during which students work on and once weekly push-in services by the to work on (trans. 31-32). The program also includes daily adaptive physical education (trans. 33). Teachers communicate with parents through notebooks (trans. 35). Teachers and related services providers also meet for weekly case conferencing to discuss students and coordinate on strategies to work with individual students (trans. 35-36).
There is a social skills lunch group which attended one day per week. During the winter months, when was unable to tolerate the noise in the lunchroom when students did not go outside during recess, he was permitted to attend this group two times per week (trans. 71-72).
Ms. s grade class last year included special education students and general education students. Ms. explained that she and the general education teacher were able to work with the students in small groups and differentiate instruction (trans. 33-34).
s therapist prepared a report in April 2011 outlining ’s progress (Department Ex. 6). She stated that had mastered the goals of sitting in a chair without during lessons. He was working on , . He continued to , . also had and was “ stimuli in the environment, which also impacts his ability to stay connected to the group” (Department Ex. 6 at p. 1). The therapist recommended that have the classroom accommodations of ” to address unexpected events such as school assemblies.
’s therapist prepared a report in May 2011 and indicated that had “secondary to difficulties with ” (Department Ex. 7). He is and and has difficulties . The therapist reported that ’s “sensory processing delays affect social participation in the school environment” (Department Ex. 7 at p. 1). continued to during the school day and “ ,” “at times unable to be redirected” (id). The proposed that for during the 2011-2012 school year, she would incorporate use checklists for challenging tasks while , and have him use .
A CSE school conducted a evaluation of in June 2009, when he was a (Department Ex. 9). attained the following scores on the ed.,: full scale IQ non-verbal IQ , verbal IQ , fluid reasoning , knowledge ( range), quantitative reasoning , visual-spatial processing and working memory (Department Ex. 9 at pp. 2-3). This was the only testing administered by the
The CSE convened on May 12, 2011 to create an Individualized Education Program (“IEP”) for for the 2011-2012 school year (Department Ex. 5).[1] Ms.
attended this meeting with both parents, the general education teacher, the assistant principal, therapist, therapist, and therapist in attendance (trans. 35-38). At the meeting, the parent stated (trans. 38, 70, 75-76). The parent had informed the a few days before the CSE meeting (trans. 78). Ms. testified that this was a “ because into ” (trans. 38). According to Ms. the CSE meeting was the first time that she had heard from the parents that . Most of the discussion at the meeting revolved around “ ” (trans. 38-39). After this discussion, the team reviewed the goals proposed for the IEP.
Ms. explained that the management needs included in the IEP were the “things that help ”—such as , ( ) and checklists (trans. 41). The goals were created to address the skills that “needed to work on,” such as initiating interactions with his (trans. 43-51). These goals were discussed at the CSE meeting; the parents did not express disagreement with the goals (trans. 51).[2]
The IEP notes the following with respect to s and individual needs. With respect to activities of daily living, (Department Ex. 5 at p. 1). Regarding f , was level in writing. He , difficulties with motor planning and sequencing, was distractible, had problems with organizing materials and himself in class, and “struggle[d] to utilize for .” In addition, “sensory processing delays affect[ed] ’s environment” (Department Ex. 5 at p. 1). “does ” and “benefits from a schedule and knowing it a change will happen” (Department Ex. 5 at pp. 1-2). A evaluation was not considered by the CSE in developing the IEP, nor did the team rely on any or testing (trans. 115-116).
With respect to social skills, the IEP stated that engages in parallel play and “can share common toys and materials with significant structured support” (Department Ex. 5 at p. 2). He continued to have and 3 (id). With respect to , needed reminders in the school building because he had a “ .” was also and , (id).
The IEP lists the following management needs for , , , and (Department Ex. 5 at p. 3).
The IEP includes goals in the areas of , , (one goal to improve self-regulation skills), ( with a partner”).
The CSE recommended that (“ICT”), receive adaptive physical education, (one 30 minute session per week, individually, and three 45 minute sessions per week in a group of no more than students), (one 30 minute session per week, individually; one 30 minute session per week in a group of students; one 30 minute session per week in a group of no more than students), and (one 30 minute session per week, individually; two 30 minute sessions per week in a group of students). The IEP also recommended that and and during the summer (Department Ex. 5 at pp. 8-10). Ms. explained that the frequency of “because he was making such that the related service providers “ ” and were trying to reduce the amount of time he was “pulled” out of the classroom (trans. 52). The related services recommendations were discussed with the parents at the meeting (trans. 53). Ms. stated that the CSE recommended the ICT class because from the beginning of the 2010-2011 school year, until May, “was making lots of progress, academically and socially” in the ICT class as a result of the differentiated instruction provided by the two teachers in the classroom and the one-toone attention they were able to provide him (trans. 54).
Ms. testified that the IEP was sent home to the parents in ’s backpack the day after the CSE meeting (trans. 122-123). Ms. believed, but was not sure, that she spoke with the parent to “make sure” the parents received the IEP (trans. 123).
3 The IEP also notes that “is a joy to have in our classroom,” “always follows the rules within the classroom,” and “wants to learn new things” (Department Ex. 5 at p. 2).
Ms. stated that has an called “ ” (she did not describe this program) and that she addressed in the classroom any that arose with her students (trans. 58-59). She was not aware of any instances in which had been as a grader (trans. 60). Ms. explained that would become upset if he saw another student upset or “being picked on” and interpreted an incident of the of another student as of himself. Ms. would talk to about these “misinterpretations” (trans. 80-81). was a sensitive even when there was none (trans. 84). She had , had class discussions about , arranged for him to attend the lunch group so “he wasn’t in the cafeteria,” arranged for him to see the at-risk and encouraged him to share his interests in cookbooks and nonfiction reading with a peer (trans. 81-82, 85). saw the in May and June (trans. 85). Ms. met with the parents after to CSE meeting to address their concerns about (trans. 83 were not added to the IEP (trans. 86).
Ms. denied that ” in class and (trans. 126, 127). Ms. stated that “there were no —after he visited , that’s when all these problems occurred” (trans. 76, see also 142). At the end of the 2010-2011 school year, in the morning (trans. 129, 141).
At the end of the 2010-2011 school year (trans. 130-131).
r attended the summer program in 2011 and received therapy as per his IEP (trans. 60, 67-68). According to Ms. , if had attended in September 2011, there was a place available for him in class (trans. 61). She opined that if had returned to the program for the 2011-2012 school year, he would have made progress because “he was making the growth that he needed in my class” and “in the , he would have still made the same growth, and would have grown more” (trans. 62). This ICT classes include no more than ten general education students and five special education students, each of whom (trans. 124-125).
The Department conceded that a final notice of recommendation was not sent to ’s parents for ’s placement for the 2011-2012 school year (trans. 320). The Parent’s Case
Dr. testified that she held a doctoral degree in clinical had completed a post-doctoral program in pediatric nurse and was a licensed
(trans. 247). She has a private practice in which she evaluates children and provides treatment to children and parents. Dr. conducted a evaluation of in June 2011 (Parent’s Ex. E; trans. 248).4 In her evaluation, she noted that the parents were concerned about ’s ” at (and ), and . The parents also informed her that had become “quite resistant about going to school” (trans. 249). Dr. observed that had , in particular with , in the correct sequence (Parent’s Ex. E at pp. 2, 4, 9).
Dr. observed at . During lunch time, he paced back and forth by himself on the bridge of the jungle gym for “20 minutes, non-stop, in a highly repetitive fashion, with no interaction with other children who were milling about him” (Parent’s Ex. E at p. 3). The teacher on the playground told Dr. that often and did not interact with the other children (trans. 253). Ms. reported to Dr. that was “a distractible child who went more ‘into his own world’ as the year went on’” (Parent’s Ex. E at p. 3). It was and .
Dr administered the to . He attained a full scale IQ score of , in the , with a , , , and a (Parent’s Ex. C at pp. 4, 13). On academic testing on the
I, performed at the above grade level in word reading, at the grade equivalent level in , at the equivalent level in numerical operations, and at the grade equivalent level in (Parent’s Ex. E at p. 15).
With respect to reported (Parent’s Ex. E at p. 8). He does and benefits from ” because he “is unsure how to initiate in a larger group and so himself” (Parent’s Ex. E at p. 9). She described , [by classmates], being somatic , as it is difficult for him to express his feelings directly” (Parent’s Ex. E at p. 9; see also p. 16 [results of BASC-II]). Dr. explained that was considered in the mild to moderate range of the (trans. 265-266).
Dr. recommended that attend a “ ” with “active support” of . (Parent’s Ex. E at p. 11) She opined that the “was not working for him” because his “ (trans. 267, 270). Dr. observed at described her observations, and opined that was an appropriate setting for him (trans. 272-275).
This evaluation would not have been available to the CSE in preparing the May IEP.
, a certified general and special education teacher, testified that she was a classroom teacher and assistant director of special education at (trans. 166). She is the special education co-teacher in the class, and is one of her students this school year (trans. 166, 174). Ms. described the mission of as serving children with “gifted IQ” who have special education needs (trans. 168). The school includes students in grades in . The students range in age from year (trans. 169). The students’ disabilities include , that “prevent them from being successful in a more mainstream classroom” (trans. 170).
The school includes classrooms, a gym, rooms for the related services providers and two “quiet rooms” with and well as work stations (trans. 171-172). On staff are a full-time school psychologist and part-time speech and occupational therapists (trans. 172). Each classroom (except kindergarten) is staffed by a general education with experience in gifted education and a special education teacher (trans. 172). The school also employs an art teacher, music teacher, technology teacher and math specialist. The school offers parent workshops and trainings conducted by the school psychologist or a guest speaker (trans. 173).
Ms. explained that ” (trans. 174).
There are boys, including , in the class. They range in age from years of age. They each have . All students have created by the therapist. These boxes are kept in their selected by the for each student (trans. 177-178). The classroom also has larger sensory tools such and (trans. 222-223).
The other teacher in the class is a certified general education teacher working on her gifted education certificate (trans. 180). The two teachers plan and implement lessons together. ’s weekly schedule at , music, social studies, reader’s theater, (Parent’s Ex. G). The reading curriculum is based on the Columbia University Reader’s Workshop for reading comprehension and the multi-sensory approach to phonics instruction (trans. 182). reading, and conferencing to work on literacy skills (plot, setting, themes, text analysis) and c (trans. 183). Students work in small groups for decoding skills (trans. 183). ’s range. is functioning at the “mastery” level in decoding, which means that he “knows all of the rules he needs . . . to be a successful reader” (trans. 184). His spelling skills are consistent with his decoding skills, and he is functioning on a . At the beginning of the school year, ’s reading comprehension was at and his (trans. 185-186). Reading is taught through a whole group lesson and then small group instruction (trans. 189). Writing is also taught through a whole group lesson, and then students work in small groups. Ms.
is focusing on editing with , ensuring that he is , . There are students in ’s reading and writing small groups (trans. 189-191). The pushes into the classroom twice per week to implement the (trans. 191). also uses graphic organizers to help him organize his ideas for his written work (trans. 193). He needs to “ through a graphic organizer with the teacher” (trans. 194).
Math is taught by the math specialist using the math program, “
Math” and the national common core math standards (trans. 194-195). is functioning on (trans. 195). Math is taught through a whole group lesson and then small group work, with differentiation in the instruction (trans. 197). has made . He has the
(trans. 198).
In science, the class is working on a unit and (trans. 199). Over the course of the year, ’s engagement in school (including in science) and his ability to work with his classmates has increased (trans. 201). In social studies, the class is working on the history of Native Americans (trans. 201). has been in social studies (trans. 202). He has (trans. 206). He ” and say” (trans. 207). Ms. has been working with him to learn to (trans. 208).
Students have access to laptop computers and IPads. A is used daily in the classroom. ” (trans. 203).
Ms. explained that because (trans. 204). He uses the class visual schedule, checklists, and picture cues on the Smartboard (trans. 204).
Ms. stated that began the school year with “a lot of baggage from last year.
There were a , particularly things like the and that he brought to us. So we saw a lot of that from his . So we worked through a lot of that with him to help him feel more ” (trans. 211-212). ’s “ in a “ ” (trans. 212). During the first few weeks of school, and (trans. 212). Ms. with to . would “ , and Ms. “ ” (trans. 212-213). The school to (trans. 240). still have been reduced to one time per week (as opposed to several times per day in the beginning of the school year) (trans. 213).
Lunch in Ms. ’s class includes the boys and the two teachers eating together in the classroom, in a small lunch area near the gym, or outside in a park (trans. 214). At lunch at the beginning of the school year, activities of daily living were difficult for . For example, it was hard for him to unpack his lunch, organize himself and eat. The worked with to organize himself for lunch (trans. 214).
provides related services to . He with the , who is working with on (trans. 218-219). receives therapy for one 30 minute individual session per week and two 45 minute sessions per week in a group of students (trans. 226). The is working to improve ’s and , address his , , and and (trans. 227228). has made improvements in all these areas (trans. 229). receives therapy for two 30 minute individual sessions per week and one 45 minute session per week in a group of students. The therapist is , , him (trans. 232-236). Ms. and the related services providers collaborate through weekly team meetings (trans. 241).
Ms. opined that met ’s (trans. 243).
’s fall 2011-winter 2012 progress report (Parent’s Ex. L) states that he has made progress in reading—he is a more fluid reader, his decoding has improved, and his reading comprehension has continued to grow. In writing, has improved his willingness to engage in writing tasks and his spelling. He was able to write but needed support in organizing his ideas and was working on editing and revising his work. In science, and showed “ ” in the material presented (Parent’s Ex. L at p. 4). He had also actively participated in social studies lessons and involved in projects and topics presented in class. In math, pays attention, takes part in discussions, asks for assistance, and shows his understanding by explaining his work.
participates in a weekly 30 minute individual session with the school and a weekly 30 minute group session with his classmates provided by the school (Parent’s Ex. L at p. 13). ’s social-emotional/ goals are reinforced in his classroom and during and therapy sessions. During the school year, has become more related to his classmates and teachers and increased his eye contact, ability to join others in a group, and verbalization of his needs. He benefits from prompts and reminders when participating in a group. ’s socialemotional goals at include increased attention and relatedness in social settings and increased ability to communicate his needs and emotional state, including learning to cope with his feelings of anxiety.
’s therapist reported improvements in gross motor skills, handwriting (through the Handwriting Without Tears program), and self-regulation (Parent’s Ex. L at pp. 16-19).
, the head of school of testified that the tuition at the school for the 2011-2012 school year is $ is not provided with any scholarships or financial assistance. This amount does not cover the costs of the program and represents, according to Ms. the average of tuitions charged by private special education schools in New York City providing services similar to those provided at (trans. 329-330).
The parent testified that has and a disorder (trans. 334). attended the program for and grade. had a difficult time at lunch—he was alone, isolated, cried, and was upset by the movies shown in the cafeteria during the winter months (trans. 335-336). In addition, “had a lot of trouble getting to school”—he did not want to attend and would say he was sick (trans. 336). complained to her about “other students being in trouble and the teachers being angry” (trans. 337). had had “a problem going to” since the parents “were hoping that it would get better” and would “grow out of it,” because they wanted to “stay at it happen[ed] to be in [their] neighborhood” and was “very convenient” for them (trans. 371). The problem “just got worse and worse and worse” and “it seemed like there were a seri[es] of things that happened that made it worse” (trans. 371).
When the parent was at for meetings and events (approximately every other week), she observed that “was always by himself,” that was “ by the other students, and that he paced across the top of the jungle gym (trans. 337-338, 357358, 359-361). When she told ’s teachers about these concerns and that was the teachers responded that “everyone loves ” (trans. 340).
After the parent teacher conference in March 2011, when the parents expressed their concern to ’s teachers that did not have any friends, the parents “started thinking that maybe the school wasn’t the right place for him” (trans. 371). The parents learned about in May (trans. 371).
At the IEP meeting, the parents explained that reported being teased. The parents informed school personnel that “really was having a hard time coming to school” and was school personnel responded that was “misinterpreting what was going on” (trans. 341, 343). At the meeting, school personnel informed the parents that would continue at (trans. 342). They also informed the parent that if did not attend the summer program at , he would not receive related services (trans. 364-365).
The parent stated that she did not see or receive a copy of the IEP until December 2011 (trans. 344). The parent never found a copy of the IEP in ’s backpack (trans. 345).
The parents sent an email to personnel at on August 9 informing them that would not be returning to the school in September (Parent’s Ex. C).
By letter dated August 10,[5] the parents informed the CSE that they believed that the Department had not offered an appropriate program or placement for the 20112012 school year and were placing him at and would be seeking tuition reimbursement (Parent’s Ex. D).
The Department was not providing bus transportation to for the 2011-2012 school year (trans. 352).
The parents signed a enrollment agreement on September 1 (Parent’s Ex. K). The tuition at for the 2011-2012 school year is $ The agreement states that if the parents were to accept a Department placement for prior to October 1, the agreement would be “cancelled” and all payments would be refunded to the parents. The parents have paid $ of the tuition as of the time of the hearing (Parent’s Exs. I, J). The parents have established their inability to pay the remainder of the tuition by providing their federal tax return for 2010 and testimony that their 2011 income was significantly less than their 2010 income (Parent’s Ex. H; trans. 353-554).
Findings of Fact and Decision
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).
I. 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, 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 decisionmaking 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.
A. Allegations of Procedural Violations
The parents allege, and the Department concedes, that the Department did not issue a final notice of recommendation for for the 2011-2012 school year. The parents also allege that they did not receive a copy of the IEP developed at the May CSE meeting. The parent asserted that she did not receive a copy of the document until December 2011.
The Department is correct that the failure to provide a final notice of recommendation to the parents in the context of the facts of this particular case did not rise to the level of a denial of a free appropriate public education to (see Department’s Post-Hearing Closing Argument, at p. 7). The parents knew that the Department planned to continue ’s placement at The parent testified that school personnel informed her at the CSE meeting that would be continuing at . The parents demonstrated that knowledge by sending to the summer program at in order to receive related services in July and August. The parents also demonstrated their actual knowledge of the placement when they wrote their email to personnel and their letter to the CSE indicating that would not return to in September. As a result, the failure of the Department to provide a final notice of recommendation to the parents did not impede ’s right to a free appropriate public education, did not impede the parents’ opportunity to participate in the decisionmaking process, nor cause a deprivation of educational benefits to ; and this procedural inadequacy did not deprive of a free appropriate public education. See M.P.G. v. New York City Department of Education, 08 Civ. 8051, 55 IDELR 37 (S.D.N.Y. Aug. 27, 2010) (where parent had actual knowledge of proposed placement, “parent failed to establish that the district's alleged failure to properly mail the Final Notice of Recommendation (“FNR”) . . . impeded the student's right to a Free Appropriate Public Education, (“FAPE”) or significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits”).
The Department is required to provide parents with a copy of their child’s IEP. 8 N.Y.C.R.R. §200.4(e)(3)(iv). Here, Ms. testified that she provided a copy of the May 2011 IEP to the parents by placing it in ’s backpack. This might not be an ideal manner of transmitting a copy of an IEP to a parent; however, it is a typical manner used by elementary school teachers to provide materials to parents. While perhaps a more formal mechanism should have been used to send the parents a copy of ’s IEP, I find that the Department did not commit a procedural violation of the IDEA in this particular instance because: (1) I credit Ms. ’s testimony with respect to sending the IEP to the parents and (2) the parents knew there was an IEP in place and availed themselves of services pursuant to that IEP for July and August 2011.
B. Appropriateness of the Special Education Program
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. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).
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 correctly asserts that the May 2011 IEP describes in great detail ’s then present levels of performance with respect to activities of daily living, intellectual functioning, adaptive behavior, ability to learn, learning style, strengths, preferences, and then present levels of social and physical development as well as the strategies and modifications from which he benefits (see Department’s Post-Hearing Closing Arguments, at p. 9). The special education strategies and modifications were “reasonably calculated” to permit “to receive an educational benefit:” daily schedules, checklists, visual cues, sensory input, calming techniques, and prompting to pay attention. As Ms. explained, these were the strategies that had assisted during grade. As a result, the CSE properly included them in the IEP for grade.
The IEP sets forth a program “reasonably calculated” to permit “to receive an educational benefit”—the , the program in which he had made progress during the 2010-2011 school year. Ms. credibly explained, based upon her experience with in the classroom for the entirety of the 2010-2011 school year, that made academic and social progress during the year as a result of the attention and differentiated instruction both she and the general education classroom teacher were able to provide him in the small, integrated classroom. was functioning at or grade level academically at the end of grade and had improved in his interactions with his peers. This program would continue to provide in grade with a small class of no more than students and two teachers where he can continue to receive the individualized instruction and personalized attention and teacher support he needs. The IEP sets forth, and the would provide, adaptive physical education and an array of related services (both individual and group sessions) to support : therapy, therapy and therapy. The testimony presented by Ms. and the information provided in the related services provider reports demonstrate that since made progress in the last year, the CSE “properly recommended” that return to the for the 2011-2012 school year (see Department’s Post-Hearing Closing Arguments, at pp. 10-11).
The parent argues that the Department did not satisfy its the burden of proof because it provided only the most minimal evidence with respect to the implementation of the IEP for the 2011-2012 school year and with respect to whether it could have provided with a free appropriate public education for his grade year at (see Parent’s Memorandum of Law, at p. 6). This observation does not accurately portray the record. Ms. provided detailed testimony with respect to the at . Testimony elicited from her included the following information concerning the program: the classes consisted of no more than general education students and ; there were three sessions per week of with the and one session per week of push-in therapy; there was daily adaptive physical education; and case conferencing with teachers and related services providers. Here is the analysis that the parent seeks to have applied in this proceeding: ignore the detailed IEP that recommends continuation of a program in which had made progress, ignore Ms. s testimony, and presume that the IEP would not have been implemented at the at —the placement in which the interventions, strategies and programs set forth on the IEP had previously been provided. There is no basis for following this analysis.
The Department has also fulfilled the IDEA’s mandate to provide special education in the least restrictive environment. The provides with integration in a general education school and a class that includes typically developing children. had attained education benefits in such an environment.
might not provide “everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]). The parent expressed particular concern that ’s social and emotional needs were not addressed at Ms. testified that as soon as the parent voiced her concerns about and/or and ’s lack of friends, Ms. responded to the parent and addressed those concerns even though she had not seen such problems in the classroom. The parent also stated that had “resisted” going to school since the beginning of The parent waited until the end of grade before alerting school personnel to this problem, depriving the staff of special educators and related services providers (whose observations of at school indicated that was enthusiastic about school) the opportunity to address this issue in a timely way. In light of the testimony elicited from Ms. at the hearing, the record provides sufficient evidence regarding the for the Department to satisfy its burden of proof.
The evidence presented at the hearing demonstrates that the Department offered a free appropriate public education for the 2011-2012 school year. As a result, the Department prevails with respect to the first prong of the Burlington/Carter analysis.
II. The Appropriateness of
The parent bears the burden of proof concerning the appropriateness of Lang 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).
’s identified special educational needs include the following: activities of daily areas. provides a small class with two teachers who provide academic instruction targeted to ’s functioning levels, use graphic organizers, visual cues (including a visual schedule and checklists) and provides support to address his ; therapy and individualized interventions from the to address his , and body awareness problems, and executive functioning difficulties; to address his , .
has made progress thus far this school year. According to Ms. and his fallwinter report, has improved his . He pays attention in class, participates in class and works on projects. He has become “more related” to his and will participate in group activities. He has increased his ability to express himself and cope with his
Through the interventions of Ms. and the school he has significantly reduced the number of .
It is also important to note that while the restrictiveness of the parent’s unilateral placement is relevant in determining whether the parent is entitled to tuition reimbursement, a placement selected the parent is not held to the “same strict standard of placement as school districts are.” Frank G., 459 F. 3d at 364. The Department makes a compelling argument when it contends that ’s placement at is overly restrictive given his cognitive ability and progress at the (see Department’s Post-Hearing Closing Arguments, at pp. 14-15). See M.S. v. Yonkers Board of Education, 231 F.3d 96, 105 (2nd Cir. 2000); D. D.-S. v. Southold Union Free School District, 2011 U.S. Dist. LEXIS 100809, 45-48 (E.D.N.Y. Sept. 2, 2011). The cases cited by the Department involve either parental placements in residential facilities or a program consisting of one-to-one tutoring services (see M.S. v. Fairfax County School Board, 553 F.3d 96-105 (4th Cir. 2009). This case is not as extreme as the cited cases. Here, the parents have located a placement for in a special education day school, which would be too restrictive if the standard applied to school districts were to be applied. However, under the less strict standard of the Second Circuit in Frank G. applied to parents, the placement at is not overly restrictive at this time for the 2011-2012 school year.
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the parents have met their “prong II” burden.
III. Equitable Considerations
With respect to the third Burlington criterion, whether equitable considerations support the parents’ claims, the evidence establishes that the parents cooperated with the CSE by attending and participating in the CSE meeting. Furthermore, the parents established, through their tax returns and testimony, that they are unable to afford paying the total school tuition “up front” and then pursuing a reimbursement remedy. See Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp 2d 403, 425428 (S.D.N.Y 2011).
Finally, the parents, in their hearing request, sought bus transportation between their home and the School. New York Education Law §4402(4)(d) provides, in relevant part, that a board of education:
shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.
In order to be entitled to publicly funded transportation, Education Law §4402(4)(d) requires a student to be attending a private school for the purpose of receiving special services or programs similar to the special education programs recommended by the student’s public school. Application of a Child with a Disability, Appeal No. 07-082; Application of a Child with a Disability, Appeal No. 07-073. Here, the self-contained special education program at is markedly different from the mainstreamed program at . As a result, the Education Law precludes the provision of bus transportation in this case.
Therefore, for all the above reasons, it is ordered that:
The parents’ request for reimbursement and payment of tuition for at for the 2011-2012 school year is denied. Dated: March 2, 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 20, 2012
PARENT
None
DEPARTMENT OF EDUCATION
1 Complaint, dated 11/22/11, 4 pages 2 Due Process Response, dated 9/12/11, 4 pages 3 Notice of IEP Meeting, dated 4/14/11, 2 pages 4 Notice of IEP Meeting, dated 5/9/11, 2 pages 5 IEP, dated 5/12/11, 15 pages 6 Annual Review Plan, dated 4/2011, 2 pages 7 Annual Review Plan, dated 5/26/11, 2 pages 8 Progress Report to Parent, dated June 2011, 7 pages
DOCUMENTATION ENTERED INTO THE RECORD ON FEBUARY 1, 2012
PARENT
B IEP, 5/12/11, 16 pages C Parents Emails to PS 32, 8/9/11, 2 pages D Parent Correspondence to CSE, 8/10/11, 1 page E Evaluation, July 2011, 17 pages F School Program Description, Undated, 1 page G Class Schedule, 2011-2012, 1 page I Affidavit of Tuition, 1/25/11 1 page J Proof of Payment of Tuition, 7/18/11 & 8/3/11, 4 pages K Enrollment Contract, 9/1/11, 4 pages
DEPARTMENT OF EDUCATION
9 Evaluation, 6/7/09, 3 pages
10 Observation Report 2009,
IMPARTIAL HEARING OFFICER
I Decision on Request for Extension of Time, 1/20/12, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON FEBUARY 16, 2012
PARENT
H Form 1040 2010, Undated, 2 pages L Progress Report, 2011-2012, 19 pages
DEPARTMENT OF EDUCATION
None
POST HEARING SUBMISSIONS
II Department’s Post Hearing Closing Arguments, 2/24/12, 17 pages III Parent’s Meomorandum of Law and Closing Statement, 2/24/12, 19 pages
Footnotes
[1] The IEP was also admitted in evidence as Parent’s Ex. B. Exhibit B is more readable, has slightly different pagination, and includes a blank sign-in page. The substance of the documents are the same.
[2] Ms. admitted that the IEP “was written before” the CSE meeting and that the recommendation that would continue in the class was also determined prior to the meeting (trans. 70-71). The parents did not raise any predetermination claims in their hearing request. As a result, no such claims are considered in this decision. See, e.g., B.P. and A.P. v. New York City Department of Education, 2012 LEXIS 1736 at pp. 11-12 (E.D.N.Y. Jan. 6, 2012) (procedural objections to CSE review waived if not raised in hearing request).
[5] The parent testified that the letter should have been dated “2011” and was, in fact, mailed in August 2012 (trans. 347-348).