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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 17, 2012
February 17, 2012
March 21, 2012
May 1, 2012
Record Close Date: May 23, 2012
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17,2012
Attorney — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 17, 2012
Attorney — Student
Parents
Parents
District Representative — DOE
School Psychologist (via telephone) — DOE
CPSE Administrator (via telephone) — DOE
Pathologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2012
Attorney — Student
Parents
Parents
Teacher (via telephone) — Student
CSE, District Representative — DOE
Administrator (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2012
Attorney — Student
Parents
Speech and Language Pathologist, — Student
(via telephone) — Student
CSE, District Representative — DOE
By Complaint dated December 14, 2011, the matter of . came before me as Impartial Hearing Officer (“IHO”) pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This Complaint alleged that on November 23, 2011, the District denied the Student a Free Appropriate Public Education (“FAPE”) by decertifying the Student as eligible for special education services and failing to offer any transition services for the Student. The Complaint alleged that the parent was denied meaningful participation in the Individualized Education Program (“IEP”) processes, that the IEP failed to provide adequate special education services including a , that the IEP failed to provide a recommendation to meet the academic, developmental and functional needs of the Student, and that the IEP failed to recommend appropriate transition support services for the Student. Relief requested includes an independent neuropsychological evaluation, an independent speech and language evaluation, instructional services to meet the Student’s individual language needs, that the Committee on Special Education (“CSE”) reconvene, and that the Student remain in a center-based program at or any other comparable full-day inclusion program. (Exh. B)
On January 13, 2012, the parties participated in the prehearing conference. (IHO Exh. 1) On February 6, 2012, the parent moved to extend the decisional timelines because of the need for additional case preparation. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to March 5, 2012. (IHO Exh. 2) On March 1, 2012, the parent sought to extend the timelines again because of the need for additional case preparation. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to April 4, 2012. (IHO Exh. 2) On April 3, 2012, the parent sought to extend the timelines again because of the need for additional case preparation. (IHO Exh. 2) This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to May 2, 2012. (IHO Exh. 2) On May 1, 2012, the parties sought to extend the timelines again because of the need to brief the matter. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to June 1, 2012. (IHO Exh. 2) The record close date in this matter was May 23, 2012, the date the briefs were received. (IHO Exh. 3)
FINDINGS OF FACT
The Student is a
The Student . (193-196, 253-254) Consistency is considered to be particularly important for this child. (189)
An IEP dated July 22, 2010 placed the Student in a classroom with related services of , 2x30 individually. (Exh. A)
An IEP dated June 13, 2011 recommended an classroom for the Student with hours of service per day. (Exh. 1) therapy were recommended, 2x30, . This IEP was challenged by the parents, and an IHO decision then invalidated the June 13, 2011 IEP for the CSE to update evaluations and conduct a formal observation of the Student. (Exh. K)
A resulting evaluation dated November 17, 2011 then found the Student to be “not always understood” with others at school, with . (Exh. 2) He required redirection, “constant reminding to wait” until the examiner completed explaining the task to him. Full Scale IQ scores were Vineland Scores were mostly in the category. The evaluator indicated that “ ” and that the Student’s speech was . The Student was verbal and able to complete all the tasks. (76)
A District evaluation dated November 20, 2011 indicated that the Student tested with age appropriate articulation skills, with receptive and expressive skills that were within normal limits. (Exh. 4) The Student’s therapist, evaluation indicated that the Student has difficulty applying language in conversation and across settings. He has not mastered all the goals in his 2010 IEP. (245-246)
An educational update dated November 14, 2011 found that the needs reminders to attend, often needs reminders to , has improved in terms of , can easily become . (Exh. Q) A less restrictive integrated setting is recommended. (Exh. Q; 200-206)
An observation dated November 16, 2011 indicated that the Student was well integrated into his class, did not . (Exh. 5; 85)
The IEP dated November 23, 2011 found that the Student had no disability. (Exh.
1) The team recommended that the Student be declassified because to have the one area with a 33 percent delay. (87) The parents indicated disagreement with this declassification. (284, 276) The parent then tried to visit sites recommended by the District, but the schools were either too far away, not available, or only provided day care. (290)
At , the Student was basically at the same level of the students. (188) He receives verbal cues and repetition and therapy. (190, 192) There are students and adults in the classroom. (209) The staff have worked on returning the Student to skills that he had prior to his being out of school after the November, 2011 IEP meeting. (217218)
FINDINGS OF FACT 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 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).
The District contends the Student did not exhibit the necessary delays to remain eligible for services, pointing to 8 NYCRR Sect. 200.1(mm). However, the record indicates that the Student did have a significant delay in the classroom. The Student’s classroom teacher, Ms. indicated that the Student had significant delays in terms of attentiveness. (Exh. Q) This view was communicated in a report available to the review team. (Ex. Q) This is also a view that is consistent with the reports from the District psychologist, which indicated that the . The indicated that the and required redirection, even during a . (Exh. 2)
The teacher is a “weighty witness” when considering when assessing recommendations for a student. A.S. v. Bd. of Educ., 245 F.Supp.2d 417 (D.Conn. 2001), aff’d mem., 47 Fed. App’x 615 (2d Cir. 2002) However, the District did not adequately consider the teacher’s statements, correspondence or this issue when declassifying the Student. I find that the Student needed special education services from a special education teacher to keep him focused and attentive to his classwork for 20112012.
The District argues that the regulations require either: 1) a 12 month delay in one or more functional areas; 2) a 33 percent delay in one functional area, a 25 percent delay in each of two functional areas; 3) a score of standard deviations below the mean in one functional area or a score of standard deviations below the mean in each of two functional areas; 4) meeting criteria in other subsections of the regulations. 8 NYCRR Sect. 200.1(mm)(1)(I). However, the District did not show that the Student’s issues with respect to attentiveness did not meet requirements pursuant to the regulations. Additionally, the District did not show that “attentiveness” is not a “functional area” pursuant to the regulations. It should be noted that this Hearing Officer has found little caselaw strictly construing the percentile requirements in 8 NYCRR Sect. 200.1(mm). Application of the Board of Educ. of the Ossining Union Free School Dist., Appeal No. 06-075 (2006)(SRO review whether declassification was appropriate for preschool student; no focus on percentile requirements).[1]
I note that Districts should carefully consider the Student’s needs when considering a mid-year transfer of the Student between locations. Block v. District of Columbia, 748 F Supp. 891 (D.D.C. 1990)(the Court noted that there was evidence to support a finding that a “mid-year change of placement” would pose a serious educational risk to the student); see also Delaware County Intermediate Unit #25 v. Martin, 831 F. Supp.1206 (E.D. Pa. 1993)(noting the importance of allowing a student to finish out a brief school period); Holmes v. District of Columbia, 680 F. Supp. 40 (D.D.C. 1988)(noting that the proposed District school was in a start-up posture and indicating that “to send the plaintiff to a new school to complete the last semester of schooling would be “insensitive”); Burger v. Murray County School Dist., 612 F. Supp. 434 (N.D. Ga. 1984)(“obvious advantages inhere to any child who is permitted to learn in a stable environment. This advantage may have even more meaning to the handicapped child”).
Here, as a result of the November, 2011 IEP meeting, the Student ended up leaving the HeartShare school. Thereafter, the parent had no realistic options for the child, who was out of school for over two months until an order of pendency reinstated him into the HeartShare program. While back at the teachers at had to work with the student to address the regression that has occurred because the Student was out of school.[2]
For the foregoing reasons, the District denied the Student a FAPE through its IEP dated November 23, 2011 IEP. The parents prevail on the first criterion.
On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel M.S. v. Yonkers Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). 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 record indicates that the Student has particular special education needs in behavior and social issues, and related needs in terms of . The record shows that the school provides a interventions to address social issues, including verbal cues and repetition. (Exh. S) The staff in the small class have worked closely with the Student to allow him to recover the during his time out of school. The on language in the classroom, daily living skills, motor skills, socialization skills. The Student also benefits from speech and language therapy at the school. While the District argues that the HeartShare program is not the Student’s LRE, parents are not held to the same standard as Districts in regard to LRE requirements. M.S v. Yonkers, 231 F.3d 96, 105 (2d Cir. 2000). Under the circumstances, 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 parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, 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 of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071
Here, the District’s only argument along these lines is that the parents did not protest during the IEP meeting. However, the record shows that the parents did register an objection to declassification at the time of the IEP meeting. Further, the District has not presented authority in this Circuit to the effect that a failure of a parent to object during the IEP meeting should amount to a finding that reimbursement should be denied on equitable grounds. The parents prevail and are awarded funding for 2011-2012 tuition at HeartShare school. Mr. and Mrs. A. o/b/o D.A. v. New York City Dep’t of Educ., 769
F. Supp.2d 403 (S.D.N.Y. 2011).
Finally, the parents also seek a ruling that this Hearing Officer order independent evaluations of the Student. The parents request an independent evaluation and an independent evaluation. However, the parents have not clearly specified why each evaluation is necessary for this student. Moreover, the record does not support the need for either such evaluation, whether through testimony or evidence. Under the circumstances, I will deny the parents’ requests for independent evaluations. Dated: June 1, 2012
________________________________
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Request
ML:dl
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 17, 2012
PARENT
A IEP, 7/22/10
B Request for Due Process, 12/14/11, 5 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 17, 2012
PARENT
C Evaluation, 6/22/10, 3 pages D Evaluation, 6/22/10, 4 pages E Social History, 6/22/10, 2 pages F Observation, 6/22/10, 4 pages G Educational Update, 3/5/11, 3 pages H Annual Evaluation, 3/9/11, 3 pages I IEP, 6/13/11, 16 pages J Educational Addendum, 6/15/11, 1 page K Findings of Factand Decision, 10/24/11, 12 pages L Stricken-duplicative M Stricken-duplicative N Stricken-duplicative O Stricken-duplicative P Final Notice of Recommendation Q Educational Update 11/14/11, 4 pages
DEPARTMENT OF EDUCATION
1 IEP, 11/23/11, 5 pages 2 Evaluation, 11/17/11, 5 pages 3 Social History, 11/17/11, 2 pages 4 Evaluation, 11/20/11, 3 pages 5 Observation, 11/16/11, 1 page
6 Stricken-duplicative
IMPARTIAL HEARING OFFICER
I Order on Pendency, 1/29/12, 4 pages
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 1, 2012
PARENT
R Addendum, 11/20/11, 2 pages S Educational Update, 2/9/12, 3 pages T Addendum, 2/28/12, 2 pages
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II Notices of Extension, Various dates, 4 pages III Briefs, 3/22/12 & 3/23/12, 30 pages
Footnotes
[1] I note that the psychological evaluation of Ms. from the District is consistent with the claims of the parent and Ms that the Student has significant . Ms. indicated that “many sounds were was difficult to understand out of context.” (Exh. B)
[2] It should also be noted that, assuming arguendo that the District was correct to declassify the Student, that the District failed to provide the Student with declassification services as is required pursuant to 8 NYCRR Sect. 200.1(ooo).