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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 23, 2012
January 31, 2012
Actual Record Closed Date: March 16, 2012
Hearing Officer: Michael S. Lazan, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2012
Parent - By Phone — Student
District Rep. - By Phone — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012
Pro se — Parents
Pro se — Parents
Clinical Psychologist (Via Telephone) — Student
Speech (Via Telephone) — Student
CPSE Administrator — DOE
Pathologist (Via Telephone) — DOE
CPSE Administrator (Via Telephone) — DOE
Special Education (Via Telephone) — DOE
(Via Telephone) — DOE
By Complaint dated November 22, 2011, the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
This is a matter involving a with a preschool student with a disability (Student). The Complaint alleges free appropriate public education (FAPE) violations for the 20102011 school year, alleging that the Committee on Preschool Special Education (CPSE) Individualized Education Program (IEP) of April 16, 2010 was improperly constituted, that the CPSE failed to consider sufficient evaluative data, that the parents were denied an opportunity to meaningfully participate in the process, that the team failed to recommend related services for the Student. The Complaint also alleges FAPE violations for the 2011-2012 school year, alleging that the April 8, 2011 IEP failed to recommend enough SEIT hours. The Complaint also alleges the August 30, 2011 IEP fails to provide the Student with sufficient SEIT hours and . The Complaint seeks relief including counseling by a private provider from May, 2011 through June, 2012 (2x60) with transportation; for sessions missed for 2010-2011 and from July, 2011 through November, 2011; reimbursement for speech therapy from November, 2011 through June, 2012: 6 “make-up” hours of .
A prehearing conference was held on January 6, 2012. (IHO Exh. 1) On January 18, 2012, the parties moved to extend the decision date because of the need for additional case preparation. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through February 22, 2012. (IHO Exh. 2) The matter proceeded to hearing on January 31, 2012.
On this date, the parties moved to extend the decision date because of the need to brief the matter. This Impartial Hearing Officer (IHO) determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through March 21, 2012. (IHO Exh. 2)
The briefs were submitted to the IHO on February 29, 2012 (IHO 3). The District indicated it wanted to supplement the record by the submission of additional documents. (IHO 4) After an initial objection, the parent consented with this request. (IHO 4) Such documents and a response from the parent were provided on March 16, 2012, which is the record close date. (IHO Exh. 5)
FINDINGS OF FACT
The Student is a , . (80-81)
On December 14, 2008, the Student was evaluated for and was deemed to require speech services. (Exh. O) On the same date, an evaluation deemed the Student to have . (Exh. R)
On March 30, 2010, a evaluation indicated that the Student had moderate delays in . (Exh. N)
On April 14, 2010, a correspondence from indicated that the Student was functioning with a greater than 33 percent delay in . (Exh. M; 115-118)
On April 16, 2010, the CPSE met to create an IEP for the Student. (Exh. L) The IEP recommended that the Student receive SEIT services but no . The team reviewed a psychological evaluation, a . (130) The Student was not provided with or occupational therapy because there was not a 33 percent delay. (131) The parents agreed with this recommendation. (131) The Student was not evaluated for because the psychologist will usually recommend whether such an evaluation is necessary. (141)
, the Student’s SEIT beginning in 2010, indicated that the in the classroom and mostly . (Exh. K) She recommended increasing her SEIT services to 10 hours per week.
The Student made some progress from September, 2010 through April, 2011. (209)
On April 8, 2011, the CSE increased SEIT hours to 10 hours per week. (Exh. D) No related services were recommended. The parents then sought , . (Exh. J) The District then provided the parents with a list of places where the Student could be evaluated.
On May 26, 2011, the parents consulted with a Dr. , an expert in . The Student was . (82, 83, 192)
Dr. works with the Student to help her that involve playing games and shaping . (84)
is appropriate for the Student’s progress. (90-91) The Student requires summer counseling to avoid substantial regression. (93-94) is often treated by a (108)
On June 20, 2011, the Student was evaluated by , who indicated that the . (49) The testing indicated that the Student tested at the normal level. (45) An “ ” was done, which showed articulation at a normal level. (46) The Student took a long time to . (5152)
Ms. later recommended at the November, 2011 review. (57)
This was recommended due to articulation errors that impacted on her socialization skills. (57)
A test called the would have shown patterns of errors. (59) Therapy due to should occur three times a week. (60)
On June 24, 2011, the Student was evaluated by Dr. , a , who recommended that the Student receive an updated evaluation. (Exh. 15)
On June 25, 2011, an occupational therapy evaluation by recommended for the Student. (Exh. S)
On August 30, 2011, an IEP meeting was held. (Exh. C) The Student was recommended for 7 hours of SEIT services, related services of and therapy. The IEP indicates that the Student should receive . was available to the Student. (161)
As per an observation from the District, the Student was still not communicating and socializing with her peers as of November 10, 2011. (74)
On November 17, 2011, another IEP meeting was held. This IEP recommended 10 hours per week of SEIT, with related services of . (Exh. B) The parent has been unable to find a provider for such though she has been provided with a list of providers.
(212) The parent has called providers on this list. (212)
Since November, the has provided therapy. (117) She works on improving her . (118)
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982) While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
1. FAPE: April 16, 2010 IEP.
An initial evaluation of a Student should include a review of existing evaluative information and shall include a “variety of assessment tools” and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the child. 34 CFR Sects. 300.305(a)(1), 300.304(b)(1); [8] NYCRR Sect. 200.4(b)(1).
Here, the District was presented with a Student who had received
The District ruled out though the District’s indicated that the . The District also ruled out occupational therapy services, albeit without an occupational therapy evaluation. The and achievement testing and did not include .
The District was on notice of given language in the to the effect that the . Moreover, the classroom observation dated April, 2010 indicates that the Student rarely speaks in class and has difficulty engaging in . The Student’s special education itinerant teacher (SEIT) at the time indicated that the in the classroom and mostly engages in solitary play. As of November, 2011, another observation by the District indicated no improvement in this area.
The District contends the Student did not exhibit the necessary delays pursuant to determined on a case-by-case basis, depending on the unique needs of a particular child and not based.
Accordingly, I find the District did not meet its burden to show that it created a program that is reasonably calculated to provide educational benefit for the Student.
2. FAPE: April 8, 2011 IEP.
The parents’ objections pertaining to the April 8, 2011 IEP focus on the District’s failure to provide sufficient related services to the Student. While the parents do not specifically reference a failure to re-evaluate on this claim, the Complaint can be fairly read to encompass claims that the District failed to consider sufficient evaluative information for the April 8, 2011 IEP as well. As with the April, 2010 review, the record shows that the IEP team did not review a variety of assessment tools in connection to this review. In particular, the District did not assess the Student in terms of needs. For the same reasons as for the April 16, 2010 IEP, I find that the District failed to create an educational program that was reasonably calculated to provide educational benefit and denied the Student a FAPE.
3. FAPE: August 30, 2011 IEP.
The parents’ objections pertaining to the August 30, 2011 IEP focus on the team’s recommendation to decrease SEIT hours to 7 and the team’s recommendation that the Student not receive therapy.
Dr. was at this review. Dr. , a , testified credibly at the hearing as an authority in the area of selective mutism. Dr. credibly testified that the to address her which has manifested because of . The District did not call, in response, any witness to with any expertise in . The record also includes a June, 2011 evaluation that recommends . While the record does not support the claim that the Student required 10 hours of SEIT rather than 7, I again agree with the parents that this IEP team failed to create an educational program that was reasonably calculated to provide educational benefit and denied the Student FAPE by denying the therapy against the recommendations of Dr. .
4. Reimbursement Relief.
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The parents are seeking reimbursement of expenses relating to the provision of counseling by Dr. therapy services by . The record establishes that these providers are qualified, credible, and have provided the Student with appropriate services that meet the Student’s special education needs. The record indicates that the Student made progress with each such provider. The parents prevail on the second criterion.
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The record shows that the Student was recommended for at the August, 2011 review. The record establishes that were then available to the Student. The parents do not clearly explain why such providers could not have provided counseling to the Student. As a result, I will only award the parents reimbursement for counseling expenses from May, 2011 through the date of the August, 2011 review.
In regard to speech services, these services were recommended by the District in November, 2011. The record shows that the parent has been unable to access a and through a list provided by the District. Accordingly, the equities should not bar reimbursement of services as provided by Ms. from November, 2011 through June, 2012, 2x45 weekly.
5. Compensatory Education.
The IDEA allows a hearing officer to fashion an , and compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)(cited in Newington).
In Reid, the D.C. Circuit explained that should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student"). A Petitioner need not "have a perfect case” to be entitled to a compensatory education award." Stanton v. District of Columbia, 680 F. Supp. 201 (D.D.C. 2011)
The parents seek 35 hours of . The testimony from Ms. indicates that she would work with the Student on , which was not addressed through during the 2010-2011 year. This continues to be a significant issue for the Student. Indeed, Ms. from the District indicated that the Student was still not communicating and socializing with her peers as of November 10, 2011. I find that the 35 hours of compensatory speech and are appropriate to allow this Student to progress as if she had received therapy in 2010-2011 through November, 2011.
The parents seek also through the services of , Inc. There is no testimony in the record from and no testimony as to how such services would bring the Student to a place where she would have been were she to have received a FAPE in 2010-2011. Further, it is unclear how such services would fit into the Student’s schedule. I will accordingly deny this request for relief. Dated: March 21, 2012 Corrected Date: March 21, 2012 (Correction made on cover page)
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT DESCRIPTION
A Hearing Request, 11/22/01 2 pages B IEP, 11/17/11, 22 pages C IEP, 8/30/11, 18 pages D IEP, 4/8/11, 10 pages E Parent-Child Services, 3 pages F CV Dr. H. Cooper, 7 pages G Evaluation, 6/20/11, 6 pages H Preschool Student Evaluation, 6/20/11, 3 pages I Email Correspondence from SEIT Provider, 5/8/11, 2 pages J Email Correspondence to CPSE, 4/20/11, 2 pages K Annual Educational Report from SEIT, 3/1/11, 3 pages L 12-month IEP from CPSE, 4/16/10, 12 pages M Letter from , 4/14/10, 1 page N Bilingual Evaluation, 3/30/10, 5 pages O Bilingual Evaluation, 12/6/08, 7 pages P and Related Documents, Various dates, 34 pages Q Documents, 20 pages R OT Evaluation, 12/14/08, 5 pages S OT Evaluation, 6/25/11, 5 pages T Family Questionnaire, 5/25/11, 15 pages U Providers, 45 pages
DEPARTMENT OF EDUCATION DESCRIPTION
2 Amended Request, 9/9/11, 8 pages 4 Resolution Agreement, 11/10/11 5 Email Correspondence, 11/10/11 6 Meeting notice, 11/10/11, 2 pages 9 Email Advising of Observation, 11/1/11 1 page 13 Copy of Insert from DSM IV, 2010, 2 pages 14 Bilingual Evaluation, 3/10, 4 pages 15 Evaluation, 6/11, 4 pages 18 Classroom Observation, April 2010, 2 pages 19 Flier from , 12/11, 1 page 20 Flier from , 12/11, 1 page 21 Email Correspondence from Supervisor, 12/11, 1 page 22 Flier from , 12/11, 1 page 23 Flier from , 12/11, 3 pages 24 List of Independent Providers for Related services for
September 2011, 13 pages 25 List of Independent Providers for , 46 Pages 27 Copy of Insert of US DOE FAPE law, 1973, 5 pages
IMPARTIAL HEARING OFFICER
I PHC Order, 1/28/12, 5 pages II Notices of Extension, 2 pages III Briefs, 2/29/12, 47 pages IV Request to Supplement Record and Response, 3/13/12, 2 pages V Additional Documents and Response, 51 pages
Footnotes
[8] NYCRR Sect. 200.1(mm). However, the District did not assess the Student thoroughly enough to make such determination. While I do not agree that the parents were denied an opportunity to meaningfully participate in the IEP process because they had a full opportunity to present their views at the review, and while there is no showing that the constitution of the IEP team had a material impact on the Student, I agree with the parents that the District denied the Student a FAPE through its IEP dated April 16, 2010 because it did not do a complete evaluation of the Student. In particular, the District did not assess the Student’s . It should be noted that Students with may be eligible for related communication issues. See Application of a Student with a Disability, Appeal No. 08- 045 (Student with selective mutism; District provided a FAPE when it provided speech and language therapy and directly addressed issues relating to selective mutism on the IEP); B.H. ex rel B.B. v. West Clermont Bd. Of Educ., 788 F. Supp.2d 682 (S.D. Ohio 2011)(Student with selective mutism required to work on - ; District failed to consider evaluations recommending and denied FAPE); Letter to Clarke, 48 IDELR 77 (OPEP Letter 2007)(“whether a adversely affects a child's educational performance must be