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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: July 8, 2011
July 14, 2011
September 21, 2011
November 15, 2011
December 13, 2011
Record Close Date: January 26, 2012
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2011
Attorney — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2011
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2011
Attorney — Student
Parents
District Representative — DOE
Bilingual School Psychologist (via telephone) — DOE
Assistant Principal, PS- (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2011
Attorney — Student
Parents
Parents
Program Director, Program, (via telephone) — Student
District Representative — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2011
Attorney — Student
Parents
Special Educator, (via telephone) — Student
Department Representative — DOE
— DOE
INTRODUCTION
On July 8, 2011, July 14, 2011, September 21, 2011, November 15, 2011 and December 13, 2011 an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 10:00 a.m., 10:00 a.m. 12:30 p.m.10:25 a.m. and 2:00 p.m., respectively. The hearing was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
The child, who is classified on her Individualized Education Program (“IEP”) as having an “ ” is years six months old and attended the (“ ”) for the 2010-2011 school year. In a letter dated March 30, 2011, the child‟s parents, by their advocate, , Esq., of the Law Offices of , filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 2010-2011 school year and they requested tuition reimbursement for child‟s tuition at the (Parents‟ Ex. A). The Department of Education filed a Response stating that the proposed placement was “reasonably calculated to enable the child to obtain meaningful educational benefits” (Parents‟ Ex. B).
The impartial hearing request was filed on March 30, 2011 and I was assigned as the impartial hearing officer on April 1, 2011. The original compliance date was June 12, 2011. On May 6, 2011 the compliance date was extended to July 13, 2011 pursuant to an unopposed request by the parents for preparation and scheduling. A subpoena hearing was held on July 8, 2011. However, the District representative, who was reached by telephone, stated that she did not recollect that the hearing had been scheduled for that day and that she was on vacation. The hearing was rescheduled for July 14, 2011. On July 13, 2011 the compliance date was extended to August 12, 2011 pursuant to an unopposed request by the parents for the availability of witnesses. The subpoena hearing was held on July 14, 2011 and a control date was scheduled for September 2, 2011 to determine the parties‟ availability dates for the hearing. On August 13, 2011 the compliance date was extended to September 11, 2011 pursuant to an unopposed request by the parents for the availability of witnesses. On September 8, 2011 the compliance date was extended to October 12, 2011 at the request of both parties for the availability of witnesses. The hearing continued on September 21, 2011. On that day a control date was scheduled for September 23, 2011, a hearing date was scheduled for November 15, 2011 and the compliance date was extended to November 5, 2011 at the request of both parties for the availability of witnesses. On November 4, 2011 the compliance date was extended to December 7, 2011 at the request of both parties for the availability of witnesses. The hearing continued on November 15, 2011. On that day the Department of Education representative requested an extension of the compliance date because she could not remain at the hearing until 2:30 p.m. when the parents‟ final witness was available to testify. The parents did not oppose the request, a final hearing date was scheduled for December 13, 2011 and the compliance date was extended to January 6, 2012. The final day of the hearing was December 13, 2011. At the conclusion of the hearing the compliance date was extended to February 6, 2011 pursuant to an unopposed request by the parents for the receipt of the transcript, time to file a Closing Statement and the issuance of a Decision and Order.
THE PARENTS’ POSITION
, Esq., represented the parents at the hearing. Ms. alleged that the District did not provide the child with a FAPE for the 2010-2011 school year, that the was an appropriate placement for the child and that the equities of the case supported the parents.
THE DEPARTMENT OF EDUCATION’S POSITION
represented the Department of Education at the hearing. She asserted that the Department of Education provided the child with a FAPE for 2010-2011 school year, that was not an appropriate placement for the child and that the equities of the case support the Department of Education.
THE EVIDENCE AT THE HEARING
THE DEPARTMENT OF EDUCATION’S CASE
is a bilingual school and has an advanced certificate as a school with a bilingual specialization. She is currently a member of the Committee on Special Education (“CSE”) for the Region . In that position Ms. observes students in their classes, conducts evaluations and participates in CSE reviews ( : 91-93).
Ms. observed the child in her class at on February 5, 2010 for about 30 minutes during “circle time” when the children were singing songs, and during “free play time.” She administered a assessment the same day ( : 93; 108-109, 112-113; DOE Ex. 3). 1 Ms. also participated in the IEP meeting held for the child on March 24, 2010 as part of the “aging out of ” process ( : 93-94).[2]
The IEP meeting was held at and was attended by the director of the preschool and the general education and special education teachers of the child‟s inclusion preschool class ( : 94-96). The child‟s mother was also present as were a CSE assigned special education teacher and a social worker ( : 96). At the meeting the child was classified as having an “ ” and the placement recommendation was for a class in a community school. The CSE recommended the related services of individual and , each three times a week for 30 minutes, individual twice a week for 30 minutes and in a group of three once week for 30 minutes ( : 97-98, 107; DOE Ex.[1] at 19). The child did not require an “ ” because she was “ ” and was “able to navigate the school building ( : 107-108).
Ms. explained that the placement decision was based on information “gathered from” the meeting with the input of the teachers and director. Although the child had “made some progress” the belief was that she would not be able to keep up in a mainstream setting. Ms. agreed because the child worked at a “ compared to other” students her age and a smaller classroom would give her the appropriate attention so that she could make “better progress” ( :98-99).
The information on the IEP indicating the child‟s “present academic performance” was based on the teacher‟s assessment of the child, the assessment administered by Ms. and input from the parent, the school director and the child‟s teachers ( : 100-101). Ms. explained why the “present levels of performance” on the IEP adequately reflected the child‟s overall functioning ( : 101-102). The “Academic Performance and Learning Characteristics” page of the IEP was written by the child‟s special education teacher ( : 102; DOE Ex. 1.4). The CSE team discussed the child‟s social emotional performance. The child was “quiet” and did “not really interact much in the classroom setting.” The child‟s teacher stated that the child had a “lot of potential” but needed to be “more engaged in activities” ( : 103-104; DOE Ex. 1.5). The CSE team also discussed the child‟s and development. The child‟s parent and the school records indicated that the child had been with , meaning that she had “ .” Because of that the child “ and ” than other children her age ( : 104105, 121-122). The CSE recommended for the child as well as ( : 105). Goals were developed for the related services of and and the and goals were developed by the child‟s and ( : 106).
The child‟s mother was given the opportunity to discuss the child and her concerns for the child and she did not object to the recommendation made by the CSE at the meeting; nor did the participants from the child‟s school express any concerns ( : 106-107).
The CSE discussed and created academic goals for the child in the areas of reading pre-readiness skills, math readiness skills and writing skills. The ”Exit Information Report” uses a rating scale from one to seven to indicate the levels that the child has achieved in various areas when she leaves ( : 109-111; DOE Ex. 8). In this case, the scores were after speaking to the child‟s parents and the personnel ( : 111).
Reviewing the IEP on cross-examination, Ms. testified that there were no goals to address the child‟s ability to , to in play, to with her or to . While there were no goals to address the child‟s , Ms. stated that the child have in that area ( : 117-118; see 201-206). Page 6F of the IEP includes goals for that were by her but the IEP did not indicate how the child was in terms of at the time the IEP was developed ( : 118-119, 133; DOE Ex. 1.12). While Ms. reviewed the child‟s Committee on Preschool Education (“CPSE”) IEP prior to the March 24th IEP meeting, the CSE team did not review the IEP and Ms. did not recall whether the child had met specific goals on that IEP at the time of the March meeting ( : 125-128). The academic goals on page 3B of the March 24th IEP were submitted by the child‟s Special Education classroom teacher and the goals on pages 6C through 6I were submitted by the child‟s ( : 128-129, 131; DOE Ex. 1.4, 1.9-1.15). Ms. noted that if these goals were the same as the goals on the CPSE IEP developed in January 2010 it was because the goals had not yet been met ( ; 129). The CSE team did not believe that the child needed counseling but rather thought that she required positive reinforcement and encouragement in the classroom ( : 132-133).
Ms. was not aware that the CSE met again in July 2010 and at that time recommended 15 hours of one-to-one “Special Education Itinerant Teacher” (“SEIT”) services for the child ( : 123).
is the assistant principal and special education supervisor at in ; she has been in that position for years. She is licensed in special education and in English as a Second Language (“ESL”) ( : 138-140). Ms. testified that the teachers of the classes at the school follow the same curriculum as the general education teachers but with a lot of “modification and adaptation to suit the needs of the special educations students with a lot of differentiation of instruction” ( : 140-141, 144, 208). For the 2010-2011 school year the school had one full time and one part time speech therapist, one occupational therapist, one physical therapist, a guidance counselor, a school psychologist, a SETSS teacher and an IEP teacher. Ms. stated that the related service providers at the school collaborate with the classroom teachers “[a]ll the time” ( : 141-
142). All of the students in the school who were mandated for occupational therapy, physical therapy and speech and language therapy received it at the school; Ms. did not recall telling the child‟s mother that the school might not be able to meet he child‟s therapy mandate ( : 197-199).
Ms. testified that the school does an “intake assessment” of all new students that come to there. All of the students in through grade get a literacy development checklist called an E-class assessment, which she described ( : 142-143).
The school has two floors, plus a and a “ ,” which is located a few steps above the second floor; the bathroom for that class in the loft is on the second floor. The students either go to the bathroom as a group or a child is escorted to the bathroom by the paraprofessional ( : 193). The school building is “barrier free” and has an elevator and ramps ( : 158-159).
For the 2010-2011 school year the class was “ ” with the grade in a class[3] and was located in the “ ”( : 147-148, 189-193). On the first day of school in September 2010 that class had students and grade students; Ms. did not recall telling the child‟s mother that there were students in that class and she did not “think” there were ever more than students in that class. The teacher was , a certified special education teacher who has been teaching at the school for “at least the last five years.” In addition, there was a paraprofessional for the class and two additional paraprofessionals who were assigned to specific students.[4] There was also a grandparent who volunteered in the classroom ( : 150-152, 172, 175, 177-179, 182).[5] One of the students with an assigned paraprofessional needed and food and the other student needed an assigned paraprofessional because the child is a “ ” or “ ”( : 182-183). No students in that class had a Behavior Intervention Plan (“BIP”) ( : 183-184).
Ms. is Ms. supervisor. She was in Ms. classroom between one and three times a day for ten to fifteen minutes, and she described the “flow of the day” and the class schedule ( : 152-155, 207-208). The program and the program, which address phonemic awareness and decoding, are used in the lower grades, as are the Everyday Mathematics and Treasure books. The school developed a “pacing calendar” with “benchmarks and deadlines” to ensure “uniformity” of the curriculum in each grade and make sure that the all of the curriculum mandated by the Department of Education‟s “common core curriculum” is being followed ( : 144-146, 211-212).
Following the Teacher‟s College model, reading is taught to the whole group in a mini lesson for seven to ten minutes followed by more individualized/differentiated instruction in small groups for at least 30 minutes based on the needs of the individual students ( : 184-185). There were three or four small reading groups in the class. The one-to-one paraprofessionals each worked with their student and “maybe” one other child and the volunteer grandparent worked with only one child. Ms. planned out the lessons and circulated among the groups providing a supervisory role in the small group instruction ( : 185-188). Math instruction was organized the same way ( : 188). When the students went to another classroom for art, gym, dance and movement or computer the teacher and the paraprofessionals brought the students to that room.6 The teacher then left for her “prep” but the paraprofessionals remained with the students for that period ( : 154-155, 188). The ratio was maintained throughout the day, including lunch ( : 155).
The students in the class were in the lunchroom with all of the students, both general and special education, in through grade. Each class has its own table and its own paraprofessional as well as the paraprofessionals. A supervisor, often Ms. , is
Those classes are taught by certified “common branch teachers (Tambinnci: 195).
always present during lunch as well as “about” three teachers and “about” four school aides ( : 156, 179-180). After lunch all of the students played together in the yard ( : 180-181).
The school has an after school program and an extended day program, both of which are available to all of the students ( : 160-161).
Ms. referred to the child‟s March 24, 2010 IEP at the hearing. She testified that she received the IEP the week of the hearing and that she “looked though it” prior to the hearing; she did not receive any other documents relating to the child. Based on the IEP and her knowledge of the class in the school, she opined that the class could have met the child‟s needs; she noted that there was nothing in the IEP that was different from the IEPs of the other students in that class ( : 149-150, 172-173). After “briefly” looking at the academic goals on the child‟s IEP Ms. testified that Ms. was worked on those goals. She opined that Ms. , along with the related service providers in the school, would have collaborated and would have been able to meet the child‟s needs during the 2010-2011 school year ( : 157-158).
The special education teachers at the school attend professional development with the general education teachers and also receive training in the and programs. The teachers are sent out for professional development workshops that are designed specifically for special needs ( : 209).
Ms. recalled that the child‟s parent visited the school in either June or September 2010 ( : 146-147).
, Ph.D., is a physical therapist licensed in New York State. He has worked in the field of physical therapy since 1978 and he has been employed by the Department of Education since 2004 ( : 236-237). For the 2010-2011 school year he was assigned to several schools, one of which was . where he worked two days a week; he was the only physical therapist assigned to the school at that time ( : 238-239, 265).7 has three floors. The gym is in the basement and there is a classroom on the second floor.
Citations to pages 265-274 refers to Ms. cross-examination of the witness.
One classroom is located about ten or eleven steps above the second floor ( : 267-269). An elevator goes to the second floor ( : 266).
During the 2010-2011 school year Dr. provided physical therapy to about eight or ten students at . . All of the students at the school who were mandated for therapy on their IEPs received it and at the beginning of the school year he had room on his roster for additional students. He testified that he would have been able to meet the child‟s mandate of three therapy sessions a week ( : 240). Dr. described his duties and responsibilities, which include evaluations or assessments and treatment or intervention to address the physical therapy needs of the students ( : 240-241). At P.S. he provides therapy in the physical therapy room as well as in the stairwell, on the ramp and in the gym, depending on the activity ( : 263-264).
Dr. has never met the child but he reviewed pages 6H, 6I and 9-1 of the child‟s March 24, 2010 IEP. He also reviewed the child‟s Individualized Program from ( : 243-245, 267, 269-270; DOE Ex. 1.14, 1.15, 1.19; Parents‟ Ex. F). There was no present level of performance on the IEP and he did not review any progress reports related to the child‟s ( : 270-271). He testified about the short term goals objectives on the child‟s IEP and explained how he would address them ( : 253-256). Dr. also testified as to his understanding of the child‟s needs based on the goals and objectives in the IEP ( : 257). He noted that is a “barrier free school.” While there are “some steps” in the school and the child might “need to ,” he opined that the child did not present as someone who “ do stairs at ” ( : 258-259).
If the child were assisted by a paraprofessional it would “help her a lot” when she came to physical therapy and the paraprofessional could provide “feedback” ( : 259). Without a paraprofessional the child would “probably” navigate the stairs by holding the handrail and walking “step over step” ( : 273).
THE PARENTS’ CASE
is the child‟s mother. She first became aware that the child might have a when the child was about months old. At that time a working with the child‟s older sister noticed that the child was “ at age ” ( : 318-319). The child was subsequently evaluated and she received Early Intervention until the age of , including , , and “ .” When the child was three she was transitioned into the CPSE which placed the child at and provided her with related services. She left after two years because although the teachers and therapists saw progress, it was not “enough progress” ( : 319-320, 346). In order to make sure that the child did not regress she was recommended for SEIT services for the summer between and her entrance into : 320).
Ms. attended a CSE meeting on March 24, 2010 with the director of , the child‟s special and general education teachers at , Ms. and two other Department of Education members ( : 320-321). They discussed the child‟s progress over the prior year and her placement for September 2010. Ms. did not see a copy of the Department of Education observation of the child prior to the meeting and she was never provided with, or shown, a copy of that observation. Following the meeting the CSE did not contact her until she received the placement letter in June ( : 324-326).
Following receipt of the placement letter in June 2010 she went to visit . The school was a “big building” and it was at the time. She recalled being told that four periods a week the students leave the classroom to go to the gym ( . : 326-327). Ms. spoke to Ms. who told her that the school had approval for a class and that the approval was “moving up with the class to grade.” However, the school had not yet received approval for a class for the 2010-2011 school year. Following her visit Ms. wrote a letter to at the CSE indicating her “concerns” and asking for a brochure of the program and more information about the school; she did not receive a response ( : 327-328, 335-337; Parents‟ Ex. C).8 Ms. also called the school in August and “left voicemails.” The school responded that it was “under construction,” there were no classes and that there was “nothing to see.” On August 27, 2010 Ms. sent another letter to Ms. again stating her “concerns” ( . : 328-329; Parents‟ Ex. D).
Citations to pages 335-344 refer to Ms. cross-examination of the witness.
Ms. testified that the same placement was recommended for the child‟s sister, who is months than the child. She did not believe it would be appropriate for both girls to be in the same class because it would “ ” and “ ”( : 330, 336). Based on what she knew about she did not believe it was an appropriate placement for the child ( . : 331).
is the child‟s father. He visited in the “beginning of mid October of 2010” and he met with Ms. (. : 309-310, 315).[9] Ms. told him that a class was scheduled to open but that it had not yet been approved and that the funding would come through in about two or three weeks. She explained that the class was to be a “bridge class” for “ ” students and grade students but said she could not tell him about the academic levels or the behavioral issues of the students ( : 310-311, 317). After the visit the child‟s mother relayed the parents „concerns to the CSE by mail; Mr. did not recall receiving a response by mail or by phone ( : 312; Parents‟ Ex. E). However, he called Ms. several times to see if the school had received funding for the class. She did not answer and he left her voice mails but she never responded ( : 312-313).
Ms. testified that if the Department of Education had recommended an appropriate public school placement for the child she would have placed the child in that school ( : 333).
The child‟s mother signed the contract for on August 30, 2010 and the parents took upon themselves the responsibility of paying the tuition. Ms. also signed an addendum to the contract agreeing to pay for the cost of the related services. If the parents do not prevail at the impartial hearing it is the parents‟ responsibility to pay the tuition. They have not yet made any payments because they could not afford to do so. However, if they do not prevail at the impartial hearing they will arrange for a payment plan with . The parents‟ gross income for 2009 was $ ( : 314; . : 331332, 342-343; Parents‟ Exs. K, L).
The is the Program Director for the girls‟ program at and has been at the school since 2008 ( : 275-276). Prior to that she had been a speech and language provider in the bilingual program at for 15 years ( : 292-293).[10] She has a Master‟s Degree in speech and language pathology and is licensed in New York State in speech and language pathology and as a teacher of the speech and hearing handicapped. She has a bilingual certificate in and has worked in the field of special education for more than 30 years; she does not have either a special education license or an administrative license ( : 276, 293). Ms. knows the child who has been a student at since September 2010. She visited the child‟s class every day and consulted with the child‟s teacher regarding the child‟s needs ( : 277, 304-305).
Ms. explained that for the 2010-2011 school year there were four selfcontained special education classrooms at . She described the needs of the students in those classes and stated that the tries to follow as closely as possible the curriculum for the appropriate age and level of the students. is in a building that is connected to a mainstream private girls‟ school. The students at had lunch with the mainstream students. ( : 277-278, 287).
For the 2010-2011 school year the child‟s teachers were and ( :285286, 296; : 360-361, 363, 407).11 Ms. has Master‟s Degree in Special Education and is certified in New York State as a special education grades through 12. She has also been trained in - ( : 361-363, 404).
Ms. testified that the child is a “ ” and “ ” who “ .” The child has “ and , across the board.” In particular, she has and in forming sentences. She also has “a lot of and processing that result in “ errors and in how to .” Ms. stated that the child has “come ” but that “ and ” are “big issues for her” ( : 278). The child “needs to be and needs to be to and to ” with the other students and to “ in class” ( : 278-279).
The school developed an IEP for the child for the 2010-2011 school year and Ms. explained how the goals were chosen for her ( : 288). The child received the related services of , and from licensed providers ( : 288-289, 302-303). At the beginning of that school year the child had “ ” and “ .‟ Her speech was “often .” The child did “ [or] with the teacher and the students.” Rather, she was to and to answer and was “kind of an ” in the classroom. If she did not that was being taught and needed she had to be to for ( : 278-279, 301). The child have the to “understand her ” or to and feelings or ( : 281-283, 294-296; : 408). Ms. explained that the child required a program in order to and the that the school “ from her.” For example, the teachers used a chart so that her behavior was reinforced for using language appropriately ( : 283-284, 299-300).
Ms. explained that in general, the child learns and processes “ ” and that she taught the child on her level at a “ ”( : 364). She wrote the child‟s IEP dated October 2010. Ms. referred to it to describe the child‟s academic skills at the beginning of the 2010-2011 school year and she explained how she addressed the child‟s needs in the classroom ( : 365-368, 370-385, 388-390, 403; Parents‟ Ex. O). In particular, she noted that she arranged for the child to be taught in a “very small group” with one other student and one teacher, and that the lessons were taught “very ” at the child‟s pace using ( : 366-371). Ms. also described the child‟s “ needs” at the beginning of the school year and explained how she worked with to address the child‟s needs in the classroom. She explained that at the start of the school year the child often walked in the back of the line holding the hand of the teacher‟s assistant because the child had a “ ”( : 387-388). By the end of the year the child was able to the “ ” and was “ ” ( : 388).
There were girls in the child‟s class. of the girls were classified as having a and , was classified as having a , was classified has other and was classified as having an . All of the children had and they all required a . They were all “ready to become but needed “very activities” to ( : 284-285, 297298, 308).
At the beginning of the 2010-2011 school year the students in the child‟s class were all on a in both reading and math, and the child was within that range; the child‟s language skills were also within the “ ” of the other students in the class (( : 391-392). Ms. reviewed the schedule for the child‟s class and described a typical school day (Parents‟ Ex. J). She testified that Ms. taught the class from 9:30 a.m. to 12:20 p.m. and Ms. taught the class from 1:00 p.m. to 3:45 p.m. ( : 297-298). The class schedule included a social skills component because it was an area that the child and others in the class “ .” In particular, they needed to learn how to approach one another, have a conversation with one another, maintain a , maintain and ask of one ( : 287-288). The schedule also included studies on Mondays and Wednesdays from 11:30 a.m. to 12:00 p.m. and twice a week from 9:15 a.m. to 9:25 a.m. studies involved reading stories which incorporated comprehension and language skills ( : 302, 306-307; Parents‟ Ex. J).
Both Ms. and Ms. opined that a class would have been inappropriate for the child. Ms. noted that at the beginning of the 2010-2011 school year the child was “, to participate even in the size,” and required a lot of help to overcome that reluctance. She stated that in the child‟s class academics were taught in a group with a maximum of two students and that the child also had a lot of instruction with a “lot of ” ( : 289).
Ms. testified that in order for the child to progress it was “so important” that she be in a “small, small group.” She did not believe that in a class the teacher would have been able to give the child “all that individualized attention” and the amount of “waiting time” that the child required to learn at her pace. Ms. also opined that she thought the child‟s would have gotten “ ” in a group and that , she would have been ( : 392). Moreover, she opined that a bridge class would “absolutely not” have been appropriate due to the “wide range in the class” and the fact that the child “ so .” She noted that the child “ ” and “ a lot of ”( : 393, 417). In addition, Ms. testified that the child is “ ” and that the graders would have been “ above” her ( : 393-395). She also felt “strongly” that the child needed a curriculum based on her level and not a “standardized research based calendar” ( : 417-418). Ms. noted that the curriculum director at creates the curriculum for the students so that the goals are appropriate for the expectations of each student ( : 421-422).
Ms. opined that the March 24, 2010 IEP was not adequate for the child ( : 289-290). In particular, she pointed out that there were no goals for working on social skills in the classroom and no social or pragmatic skills for the therapist, an area in which the child “ a amount of ”( : 290). Ms. opined that the IEP should have been “much more detailed.” In particular, she testified that the “social emotional” page of the IEP does not give a “full picture” of the child‟s needs at the beginning of the 2010-2011 school year and that is “missing a lot of information.” She stated that the description of the child‟s social emotional management needs was “a hundred percent not sufficient.” Ms. explained that if a child does “not even have the social skills to begin with” positive reinforcement would not be relevant. Rather, the skills must be taught “before positive reinforcing them.” Specifically, when a child does a particular skill the correct way the child is then positively reinforced for that skill. In addition, she noted that the IEP did not include any social skills, stating that social skills are a “ ” for the child and that the absence of this on the IEP is “basically not knowing what she needs at all.” She reviewed the other goals on the IEP and found them to be “vague” and requiring “more detail” ( : 396-401, 409-411; DOE Ex. 1.5).
Ms. believed that the was appropriate to meet the child‟s needs for the 2010-2011 school year. She explained that the school looked at the child‟s needs and addressed each of her issues by establishing appropriate goals for her and using strategies that worked for her, “both in terms of a structured reinforcement program and stimulating hands on kinds of activities” to get the child “focused and learning” ( : 290). Ms. testified that by the end of the school year, in June 2011, the child improved in all areas. Specifically, her , she was using and generating and was “much better able to and from the teachers.” She was also better able to in the classroom and she was able to and with them for example, ( : 280-281, 283-284).
Ms. also believed that was appropriate to meet the child‟s needs for the 2010-2011 school year. She testified that the child “definitely ” by the end of the school year in that she had skills that did not exist at the beginning of the school year. In particular, at the end of the school year the child was able to and and was able to and through . She was able “ ” and the and amounts of some ( : 369). Similarly, the child made “ ” in . At the beginning of the school year the child did not know the and did have “much awareness” and was not able to answer questions about that were read to her. By the end of the school year the child could , and say the of all the and “ ” words with a “ sound.” She also “mastered of words” ( : 372-373, 401). In addition, Ms. described the child‟s in her , , and her ( : 373-385, 407-408).
Ms. believed that was appropriate for the child for the 2010-2011 school year ( . : 333). The school provided the child with “a lot of and it taught her the that she is .” She testified that the child during that school year in that by June 2011 she was able to “ her and ” and was able to a for a brief period of . She was also able to the “ ” rather than “ ” (N. : 332-334).
FINDINGS OF FACT AND DECISION
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep‟t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.
The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parents, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate; and 3) equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985).
***
I begin by noting that unless otherwise indicated, I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.
I.
The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053. To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits Rowley, 458 U.S. at 188-189; R.E. and M.E. 785 F. Supp.2d at 40, and that the recommended program is the least restrictive environment (“LRE”) for the child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.
A. The parents allege, among other things, that the placement in the bridge class recommended for the child was inappropriate to meet her needs. They also maintain that the school did not have a place for the child at the start of the 20102011school year (Parents‟ Ex. A; Parents‟ Ex. Q).
The CSE team recommended a placement for the child. The FNR, which was dated June 2, 2010, specified the proposed school as . The child‟s mother visited the school in June, after it was closed for the summer, and she met with Ms. , the assistant principal. Ms. testified that Ms. told her that the current was a “bridge” class and that approval for the class was “moving up” with the class to the grade. She told Ms. that the school had not yet received approval for a class for the 2010-2011 school year. Ms. relayed this information in a letter to at the CSE in which she also expressed her concerns about the size of the school building and the information about the school that Ms. had provided. In that letter she asked for a brochure about the school and information about the other students who would be in the class (Parents‟ Ex. C). Ms. did not receive a response. She called the school in August 2010 and was advised via voicemail that the school was closed. Again, she sent a letter to Ms. and again she received no response (Parents‟ Ex. D). Mr. testified that he visited the school in the middle of October 2010 and at that point Ms. told him that approval for a class was expected within the next two or three weeks. Mr. further testified that Ms. told him that the class was to be a bridge class for and grade students, and that she could not give him any information about the academic or behavioral levels of the students ( . : 310-311, 317). Following that visit Ms. sent another letter to Ms. indicating that she had never received the information that she had requested about the proposed class and explained why the parents believed the school was not appropriate to meet the child‟s needs (Parents‟ Ex. E).
Ms. testified that on the first day of the 2010-2011 school year there were twelve students in the bridge class. She did not recall telling the child‟s parent that there were students in the class and she did not believe that there were ever more than students in the class. Ms. also testified that she would “never discuss funding with the parent” and that the school “always, always had in the school” and that often the class is bridged with the grade. She stated that on the first day of school of the 20102011 school year the bridge class had students and grade students ( : 147148).
Despite Ms. ‟s testimony otherwise, I credit Ms. ‟s statement that Ms. told her in June that there was no approval at that time for a class in September. I base this finding on the fact that Ms. related the conversation in her letter Ms. and I don‟t believe she would fabricated that statement and then conveyed it to the CSE. The evidence also supports a finding that in September 2010 there was a bridge class at the school but there was not yet approval for a singular class. Mr. testified that he was told the class had students registered and Ms. testified that the class had only students at that time. I find that the number of students in the class in September 2010 is not relevant since the evidence submitted and the testimony at the hearing, as detailed in this Decision and Order, indicates that the bridge class at was not appropriate to meet the child‟s educational needs and provide her with educational benefits.
The evidence showed that the child had severe across all areas and that she required a significant amount of individualized teaching and teaching in a very small group. Ms. , her teacher at , explained in detail how she had to give the child and she described in detail how she had often had to teach the child at a . The testimony by Ms. did not address how the child‟s particularized needs for individualized attention and additional time to would have been met in the bridge class. Moreover, Ms. testified that the school had a “ ” which would have required the child to achieve certain academic goals by specified dates. In light of Ms. ‟s testimony about the significant amount of time the child required to complete even the simplest tasks, the of a would be entirely and would most likely result in rather than . In particular, the child would not be able to master skills because of an amount of time to them and she would likely become as the of the class moved to for her (see : 417-418). Moreover, the proposed class was located in a “ ” area above the second floor. Given the child‟s there was no evidence to find that it was appropriate for the child to have to these going and coming from class and each time she had to go to the , which was on the . Notably, a paraprofessional was not recommended to help the child navigate the stairs.
As Ms. notes in her Closing Statement for the parents, state regulations require that placement in special classes be based on similarity of needs in four areas, specifically: 1) academic or educational achievement and learning characteristics; 2) social development; 3) physical development; and 4) management needs. 8 N.Y.C.R.R. 200.6(a)(3), 6(h)(2), 6(h)(3) (Parents‟ Ex. Q at 17). However, the Department of Education did not present any evidence about the functional grouping or the ages of the students in the recommended class or any other information upon which it could be determined that the child was sufficiently similar to the other students in terms of the areas indicated above. Moreover, Ms. testified that a large group of students the child would have been “ ” academically and . The Department of Education did not present any testimony to refute these concerns.[12]
For the reasons indicated above and based on the evidence and testimony at the hearing I find that the recommended placement at was not appropriate in that it was not reasonably calculated to allow the child to receive educational benefits Rowley, 458 U.S. at 188-189; R.E. and M.E. 785 F. Supp.2d at 40.
B. The parents also assert that the IEP was in appropriate and thus deprived the child of a FAPE (Parents‟ Ex. A at 2; Parents‟ Ex. Q).
In developing an IEP a school district must comply with the procedural requirements set forth in the IDEIA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 (2nd Cir. 1997); R.E. and M.E., 785 F. Supp. at 40-41. While not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA, Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 U.S. Dist. LEXIS 9873, at *30 [S.D.N.Y. Feb. 9, 2007], Application of the New York City Dep‟t. of Educ., Appeal No. 07-046, “the Supreme Court and congress have emphasized the importance of the procedural provisions found in the IDEIA.” R.E. and M.E., 785 F. Supp. 2d at 40-41, citing Rowley, 458 U.S. at 205. 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. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; Perricelli, 2007 U.S. Dist. LEXIS 9873, at 30-31; Application of the New York City Dep‟t. of Educ., Appeal No. 07-046.
In this case I find that several irregularities with respect to the IEP process and the resulting document, among others, also deprived the child of a FAPE.
For example, the Department of Education‟s observation of the child simply recounted an unspecified amount of time observing the child during “free play.” There is no information about the observation that would assist the members of the CSE in developing child‟s IEP. Ms. , the person who conducted the observation, did not elaborate on what she observed at either the hearing or the IEP meeting. In fact, the child‟s mother testified that she was never provided with a copy of the observation either before, during or after the IEP meeting. I find that this circumstance deprived the child‟s mother of the opportunity to fully participate in the IEP process.
In addition, the Department of Education‟s Response to the Impartial Hearing Request indicates that the information used by the in developing the IEP and determining a program did not include a social history or social history update, a psychoeducational evaluation or any related service provider progress reports or evaluations (Parents‟ Ex. B). In light of the fact I find that the CSE did was not able to accurately determine the child‟s then-current needs in specific areas including her social/emotional development.
The lack of these documents is reflected in the IEP itself which is deficient in adequately identifying the child‟s then-current present levels of performance and appropriate goals for, among other areas, the child‟s social/emotional needs (DOE Ex. 1.5; Parents‟ Ex. Q at 10-11).
***
In sum I find that the Department of Education failed to meet its Prong I burden based on both the inappropriate recommended program and placement and deficiencies in the IEP process and the IEP.
II.
Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden 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." Rowley, 458 U.S. at 188-89. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364; R.E. and M.E., 785 F. Supp.2d at 44-45. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S. v. Board of Education, 231 F.3d 96 (2d Cir. 2000).
I find that the parents have met their burden in this case. The testimony in support of this determination is presented in detail above with citations to the record; citations will not be included here. To summarize, there are students in the child‟s class all within the academic range of the child. Her teacher, Ms. , described how she worked with the child either one-to-one or with one other child to address the child‟s needs, which included a lot of reinforcement. She also explained how she met the child‟s needs by working with the child at her own pace, which was . Ms. testified about the ways in which the school worked with the child on developing and her , both areas of need for the child.
Ms. and Ms. , the director of the child‟s program, related the academic and / progress that the child made during the 2010-2011 school year. And, the child‟s mother testified about the child‟s improvement in and , noting that at the end of the school year the child was “ ” and “ of time.” In addition, Ms. noted that the child‟s so that she was able to ascend the at a time rather than .“
In light of the above I find that the parents met their burden with respect to Prong II.
III.
Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. Here, the evidence clearly supports a finding that the equities favor the parents; I note that the Department of Education does not argue otherwise.
The parents participated in all of the CSE meetings and Ms. visited the recommended placement shortly after receiving the FNR in June. At that time the school was not in session and it was under construction. Ms. told her that the school did not yet have approval for a class for the 2010-2011 school year. She explained that the for the 2009-2010 school year was a bridge class and that the approval was moving up with the class to grade. Ms. then wrote a letter to at the CSE relating her concerns and asking for a brochure and more information about the school; however, she never received a response (Parents‟ Ex. C). She called the school again in August and was advised by a voicemail that the school was under construction and that there were no classes. Ms. then wrote another letter to Ms. again stating her concerns and noting that her calls to the school about when it would receive a “license” for were not answered (Parents‟ Ex. D). The child‟s father subsequently visited the school in October and Ms. then wrote another letter to Ms. explaining why the parents believed that the placement was not appropriate.
For the reasons stated above I find that the equities in this case favor the parents in their request that the Department of Education pay the child‟s tuition at for the 2010-2011 school year.
The parents submitted a W-2 form for 2010 indicating that the child‟s father earned $ for that year. Under the IDEA a FAPE is guaranteed to all disabled students. The IDEA also confers broad discretion to the courts to “grant such relief as the court determines is appropriate.” 20 U.S.C. 1415(i)(2)(C)(iii). The parents are requesting “funding” which, in effect, is a request that the Department of Education pay the tuition directly to the school. The fact that the parents do not have sufficient financial means to pay for the tuition at is undisputed. I find that that prospective payment is authorized under the IDEA. See Connors v. Mills, 34 F.Supp. 795 (N.D.N.Y. 1998). To hold otherwise would be to afford greater protection to a child whose parents can afford to pay the tuition and wait for reimbursement, than to a child whose parents cannot afford to outlay the expense of the tuition. Such an interpretation of the law would ration a FAPE to children according to the financial means of their parents and would discriminate against, inter alia, low income children, inner city children and children in foster care, clearly not meeting the intent of the statute. Id. at 804; 20 U.S.C. § 141(a)(5). Therefore, I find that payment directly to the school is authorized under the
IDEA. See Id.[13]
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ORDER
In light of the above findings of fact, it is hereby ordered that:
1) The parents are to provide the Department of Education with the Enrollment contract for the 2010-2011 school year and proof that the child attended that year. Within 30 days of receiving those documents the Department of Education is to pay the tuition to in an amount not to exceed $ .00.
2) The parents are to provide the Department of Education with the “Addendum to Enrollment Contract” for the 2010-2011 school year and proof that those services were, in fact, provided to the child in accordance with the March 24, 2010 IEP. Within 30 days of receiving those documents the Department of Education is to pay for those related services at the Department of Education rate, not to exceed a total of
$
Dated: February 6, 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 SEPTEMBER 21, 2011
PARENT
A Impartial Hearing Request, 10/30/11, 3 pages B Due Process Request, 4/5/11, 4 pages C Letter from Parent to CSE, 6/15/10, 1 page D Letter from Parent to CSE with Fax Confirmation, 8/27/10, 2 pages E Letter from Parent to CSE with Fax Confirmation, 10/29/10, 2 pages F The Program Individual Education Program, October 2010, 12 pages G The Educational Progress Report, April 2011, 2
pages H Update, 1/11, 2 pages I Income Tax Returns, 2009, 2 pages J Daily Schedule, 2010/2011, 1 page K Enrollment Contract, 8/30/10, 2 pages L Addendum to Enrollment Contract, 9/2/10, 1 page M Affidavit, 6/13/11, 1 page N Attendance Record, 6/13/11, 1 page
DEPARTMENT OF EDUCATION
1 IEP, 3/24/10, 20 pages 2 FNR, 6/2/10, 1 page 3 Classroom Observation, 2/5/10, 3 pages 4 Progress Report, 1/14/10, 1 page 5 Progress Report, Undated, 1 page 6 Progress Report, 12/29/09, 1 page 7 Progress Report, 1/16/10, 1 page 8 CPSE Exit Information, CSE Referral, 3/24/10, 9 pages
9 OMITTED
10 DOE Appointment Letter, 3/10/10, 1 page 11 Notice of Request for Review of IEP, 10/9/10, 1 page 12 DOE Consent for Reevaluation, 10/9/10, 1 page
IMPARTIAL HEARING OFFICER
I Subpoena for , Principal, 8/17/11, 2 pages
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 15, 2011
PARENT
O Individual Education Program, October 2010, 20 pages P New York City Department of Education Individualized Education Program,
1/21/10, 22 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 13, 2011
PARENT
None
DEPARTMENT OF EDUCATION
13 Certification and Licenses of the Service Providers, Undated, 1 page 14 Certification of the , through 2/20/14, 1 page 15 Certification of , the Teacher, dated 9/1/07, 1 page 16 Certification of the , Undated, 1 page
Footnotes
[1] Citations to pages 112-130 refer to Ms. cross-examination of the witness.
[2] The usual procedure is to send the parent copies of the teacher‟s assessment, the observation report and notice of the IEP meeting (Altema: 113-114).
[3] The gym is located in the basement, the art, computer and dance rooms are located on the first, or “main” floor ( : 189-191).
[4] Paraprofessionals are hired by the Department of Education and sent to the school by “sub central” if needed. After observing a paraprofessional the school may hire that person directly. Paraprofessionals are required to have completed two years of college. Ms. did not “believe” that the paraprofessionals have specific training for working with students who have delays. However, the paraprofessionals at the school have been working with special needs students. They read the IEPs of their students and they collaborate with the teachers and related service providers ( : 163-165, 195).
[5] Due to an increase in students, in November 2010 the class was split into a self-contained kindergarten and a self-contained first grade. Ms. remained the teacher of the kindergarten class ( : 172, 175-176, 178). Citations to pages 173-209 refer to Ms. cross-examination of the witness.
[9] Citations to pages 315-317 refer to Ms. cross-examination of the witness. Mr. did not visit the school in September because of the holidays and because Ms. gave birth on (A. : 329-330),
[10] Citations to pages 292-304 refer to Ms. cross-examination of Ms. . Citations to pages 407-420 refer to Ms. cross examinant of Ms. .
[12] The parents also claim that the placement was not appropriate because the same placement was recommended for the child‟s sister. However, the parents did not provide any evidence or testimony to indicate that the child‟s sister actually attended the placement and thus I find that this argument has no merit (Parents‟ Ex. A at 2-3; Parents‟ Ex.Q).
[13] While Ms. cross-examined Ms. about the portion of the day spent on studies ( : 302), she did not submit either an oral or written closing statement and the Department of Education did not object to full tuition payment based on that ground.