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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: March 13, 2012
March 21, 2012
April 20, 2012 Actual Record Close Date: May 2, 2012 Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2012
Advocate (via telephone) — Student
Social Worker (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2012
Advocate — Student
Mother — Student
Social Worker-CSE — DOE
School Psychologist-CSE (via telephone) — DOE
School Psychologist- (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2012
Advocate — Student
Adelphi Academy (via telephone) — Student
Parents
Social Worker-CSE — DOE
Teacher (via telephone) — DOE
On March 9, 2012, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . after the recusal of another hearing officer. The parent requested the hearing on January 11: (1) to challenge the alleged failure of the Committee on Special Education for District 20 (the “CSE”) to with a free appropriate public education for the 20112012 school year and (2) to seek reimbursement for their unilateral placement at the ”), a non-approved non-public school in , for the 2011-2012 school year.
A pre-hearing conference was conducted on March 13. The hearing on the merits was commenced on March 21, the hearing date scheduled by the prior hearing officer. The hearing was continued to and completed on April 20 (see trans. 15; IHO Ex. I). Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
The prior hearing officer extended the compliance date to April 25.[1] On the record on March 13, the parent and the Department requested an extension of the compliance date (trans. 7-8, 16-17). This extension request was granted, and the compliance date was extended to May 25 (see IHO Ex. I [notice to parties re: factors considered and reasons for extension]). The record closed on May 2 upon the receipt by the hearing officer of the transcript of the hearing.
Background
at . Her disability is classified, for the purposes of the IDEA, as . This classification is not in dispute , for which she . from September 2010 to the present time.
The School District’s Case
, a certified school psychologist employed by the Department, testified that she was assigned to the CSE (trans. 33). Her duties included performing evaluations and participating in IEP review meetings (trans. 34). Ms. participated in a meeting concerning on June 15, 2011 (trans. 35). The following individuals attended the meeting: the parent, the parent’s advocate, a District representative (who was a special education teacher), Ms. (Department Ex. 1; trans. 35). A general education teacher did not attend the meeting because the members of the CSE “weren’t even thinking about putting her into gen ed only, so it wasn’t necessary” (trans. 36, 60). Ms. opined that was not “compromised” by the absence of the general education teacher (trans. 36). She did not provide a basis for this opinion.[2]
The CSE considered teacher estimates of academic functioning: decoding, third grade level; reading comprehension, upper first grade level; writing, upper first grade level; and math, upper first grade level. was functioning fully two years below grade level in reading comprehension, writing and math (trans. 40-41; Department Ex. 1 at p. 3). The IEP notes that “school reported that she has made tremendous strides” and that “she is an intelligent girl but has difficulty sustaining attention” and needs redirection and “a lot of assistance from her teacher” (Department Ex. 1 at p. 3; see also Department Ex. 3 [classroom observation]). The academic management needs listed on the IEP includes reinforcement of skills, preferential seating, checks for understanding, information broken down, multi-sensory approaches to instruction, verbal cueing, and use of planners (daily, weekly and monthly) (Department Ex. 1 at pp. 3-4). had made and other basic social skills such as turn-taking and conversation (Department Ex. 1 at p. 5).
The CSE also considered a evaluation of performed in April 2010 (trans. 42; Department Ex. 2). On the Stanford-Binet Intelligence Scales, fifth edition (abbreviated), attained a score of in the range. On the WIAT-II attained the following percentile rank scores: word reading, ; numerical operations, ; and written language, . Ms. noted that the academic scores in the percentiles were “not what you’d expect to see with a 79 IQ score” (trans. 42). She observed that the teacher estimates of ’s academic performance were lower and explained that “the educational testing was done individually and how [ ] performs in class and how she performs one on one can definitely be a big difference” (trans. 42-43). However, the high educational testing scores impacted the CSE’s determinations because such high scores demonstrate that “whether or not she performs in school,” “definitely has really good skills” (trans. 43). Ms. acknowledged that the evaluator stated that was six years of age at the time of the evaluation was, in fact, seven years, six months of age (trans. 59-60).
The CSE recommended that receive the following related services: counseling (one 30 minute group session per week), “school health services,” occupational therapy (two 30 minute individual sessions per week), physical therapy (one 30 minute individual session per week); and speech and language therapy (three 30 minute group sessions and one 30 minute individual sessions per week) (Department Ex. 1). Ms. explained that “school health services” referred to a full-time health paraprofessional and that this individual would be present to address ’s health concerns as well as her (trans. 44, 46).
The IEP includes goals to address deficits (one goal: to learn and use “at least 3 new pro-social techniques”), (one goal: to learn and use “at least 3 strategies”), math computation skills, math problem-solving, reading decoding, reading comprehension, spelling and writing skills, grapho-motor skills, visual-motor perception and sensory processing skills (one goal: to “improve sensory processing skills” with no further elaboration), gross motor skills, and deficits (trans. 48-52, 54-56; Department Ex. 1 at pp. 8-11).
The IEP states that will have “full participation with adult assistance” in lunch, assemblies, trips and “other school activities with non-disabled students” (Department Ex. 1 at p. 9).
The CSE recommended that special education class in a community school (trans. 57). Ms. did not explain why the CSE made this recommendation.
By a Final Notice of Recommendation (“FNR”), the CSE informed the parent that was placed in a special class at in Staten Island (Department Ex. 4). By letter dated August 22, the parent informed the CSE that she was enrolling for the 2011-2012 school year (Department Ex. 5).
, a certified school psychologist employed by the Department, testified that she was assigned to (trans. 67-68). The special education program at includes integrated co-teaching, resource room services, a The explained that the school had “a family oriented atmosphere” with monthly activities for parents and children to participate in together (trans. 73-74). Ms. had not spent time in the classroom during academic instruction; as a result, she was unable to describe how the classroom teacher would address the differing academic levels of the students in the class (trans. 76).
testified that she was a certified special education teacher employed by the Department at (trans. 91). She teaches the class proposed for for the 2011-2012 school year. There was a place for in the class in September 2011 since the class included seven students at that time; there are now nine students in the class (trans. 94). In September, the class was a . The single fourth grader attending the class was moved to another class, and the class has been a third grade class since that time, with students ranging in age from eight to ten years (trans. 101). There are seven boys and two girls in the class. The students’ disability classifications include , and impairment (trans. 107). The functioning levels of the students are from kindergarten to lower third grade in reading and first through third grades in math. Ms. would have “fit” into the class academically because her reading comprehension and math functioning were at the upper first grade level at the beginning of the school year (trans. 94-95). Ms. provides small group work and differentiates instruction for her students based upon their functioning levels (trans. 95-96). The students in the class receive some or all of the same related services was mandated to receive, and would have been able to receive her related services of physical therapy, occupational therapy, speech and language therapy, and counseling at (trans. 96). None of the students in the class have behavior intervention plans (trans. 106). Ms. implements a classroom “reward system” for classroom management in which students receive stickers which they can turn in for prizes (trans. 106-107, 108).
Ms. explained that the duties of a health paraprofessional would be dependent upon the child’s medical condition. Such a paraprofessional could also assist with refocusing the child (trans. 97).
The daily schedule of the class includes reading and math “blocks,” one period of writing, a period of science or gym or art, lunch and recess (trans. 98-99). The Parent’s Case The parent testified that when was three days old, the parents learned that had heart, and that there was the possibility of her 142).
starting when she at a non-public school, school staff informed the parents that, while was “bright,” she had “some social-emotional issues” and did “not want to socialize with kids” (trans. 143). The parent had and then requested the Department to evaluate her to determine eligibility for special education (trans. 144 , and she received the related services of occupational, speech and physical therapies. The Department recommended a school which was very far from the family’s home. The parent was concerned about traveling to this school given her seizure disorder— , which precipitates a seizure (trans. 154-155 attended the for first and second grades and received related services (trans. 145). During this time, ” ” (trans. 145).
The parent transferred . The parent attended the June 2011 IEP review (trans. 146). The parent agreed with the recommendation that 2011-2012 school year (trans. 147). The parent provided the principal of the school with , observed the class and reviewed the curriculum (trans. 147). The parent was concerned about the wide range of academic functioning in the class and the fact that there was only one girl enrolled in the class (trans. 148).
After her visit, the parent wrote to the CSE to explain her concerns about the placement (Parent’s Ex. D; trans. 150). She stated that the placement was not appropriate because there was only one girl and students with “ ” in the class and because
The parent stated that the positive behaviors of her typically-developing classmates at (trans. 152). In addition, she has made academic progress and improved her social skills—eye contact and greeting other people (trans. 153). Furthermore, teacher eats lunch with the class and monitors
The parent did explain that “a Jewish education” was important to the family; however, “there are no Yeshivas with the program that ” (trans. 156). The parent stated that, a public school, because I wanted the (trans. 155-156, 158-159). However, explained the parent, she has learned that “ being is much more important than anything else.” Since the services needs are not available in a , the parent did not place in a (trans. 159). The parent stated that, if the Department were to offer an appropriate public school placement, she would “absolutely . . . consider it” (trans. 157; see also 159).
The parent sends to camp in the summer and hires a paraprofessional to be with her (trans. 157-158). The parent is not seeing payment for summer services in this proceeding.
, the assistant head of school at , testified that she was a certified general education teacher, was scheduled to receive her certification as a special education teacher in July 2012, and was pursuing a doctoral degree in educational psychology (trans. 115). She described as a non-public school (which has been in operation for 149 years) educating children from age three through grade twelve (trans. 116). There are 120 children enrolled in the school, 30 of whom are involved in “Project Succeed,” a “special needs program” offering special education, related services, differentiated instruction and accommodations (trans. 117). Special education students are discussed at weekly meetings. In addition, a special education teacher meets “regularly” with classroom teachers, the speech therapist and the guidance counselor. Classroom teachers also telephone and/or email parents weekly (trans. 120-121). Adelphi’s curriculum follows the New York State standards (trans. 121).
student in Succeed (trans. 118). There are eight students in her class; the class is taught be Ms. , who is certified in childhood education (trans. 119). At the beginning of the 2011-2012 school year, was functioning at the “ in reading comprehension; at the time of the hearing, her reading comprehension was at an early reading decoding was ; however, she “ (trans. 120). In math, started the school year in straight calculations” . 120).
s daily schedule (Parent’s Ex. F) indicates that classes in reading, writing, math, spelling, phonics, language arts, social sciences, ELA prep, art, music/movement, computers and gym. There is also a daily lunch/recess period (trans. 124-125). has special education “Project Succeed” sessions daily, speech therapy (three sessions in a group of three students and one individual session) and one session per week) (Parent’s Exs. F, J, K; trans. 122). The daily Project Succeed sessions are taught by a special education teacher, who breaks down instruction for , works with her in a step-by-step manner with respect to both academic concepts and including eye contact and turntaking, and reinforces academic concepts with which (trans. 136-137). These sessions include either three students or are individual sessions with . Some sessions are pull-out and other sessions are push-in. In addition, Ms. also provides one-to-one instruction to (trans. 122-124, 135; Parent’s Ex. F). Ms. has a “critical thinking skills” class because “a lot of the students struggle with higher order critical thinking skills, abstract concepts, and in this particular grade a lot of the concepts come out in the curriculum. So she devotes a period to critical thinking strategies, how to pick apart a multi-step problem, working on abstract thinking, inferencing . . . .” (trans. 126).
Speech therapy is provided to by a speech therapist in a group of three students (trans. 124 counseling with a certified guidance counselor (trans. 125).
At the end of the day, “to pack up, make sure that she has everything that she needs for the day” using checklists to become more independent (trans. 127).
Progress reports prepared teacher, Ms. , and by her special education teacher, Ms , in March 2012 indicate that had made progress with taking notes, following written directions, participating in class discussions, following more than one direction at a time, listening and reading comprehension, punctuation and grammar, organizing her written work, handwriting, using manipulatives, math skills, “mental math,” fine motor skills, eye contact, interacting with peers, impulsivity, reducing confusion when there is “too much movement” in the environment, and (Parent’s Exs. G, I, L; see also trans. 128). Ms. used the following techniques with : segmenting and re-reading lengthy reading material for comprehension; guided reading; graphic organizers; segmenting and explaining multi-step math problems; multi-sensory approaches to instruction; modeling and prompting to maintain eye contact, initiating and maintaining conversations, and turn-taking (Parent’s Ex. I).
has weekly counseling with a guidance counselor. There is another child from her class in counseling with her (Parent’s Ex. J). The reported that s socialization skills “have significantly improved” during this school year—she is now able to converse directly with peers, appropriately answer questions, ask appropriate follow-up questions, ), and labeling emotions (with prompting).
pathologist reported and (Parent’s Ex. K). The therapist worked with Ms. has observed that has made social/emotional progress during this school year. At the beginning of the year, she would not make eye contact. School personnel has worked with on eye contact, turn-taking and listening, and has made progress in these areas (trans. 121). Her teachers have used role-playing strategies to address these deficits and function in social situations (trans. 133).
Ms. opined that was able to make academic progress at because the school created “an environment” in which her “issues” do not “impede” her learning (trans. 130). For example, school personnel educated themselves about ’s medical condition and ensured that she did “not get lost in the crowd” (trans. 130-131). School personnel addressed her autism-related behaviors by focusing on and implementing strategies, such as a color-coded visual schedule and verbal reminders because “ has a very difficult time with change and schedule.” The visual schedule, discussing the upcoming classes and events of the school day with Ms. and teachers providing her with “five minute warnings” and “two minute warnings” of changes assist in understanding and coping with the daily schedule and any changes to that schedule (trans. 131-132). In addition, is “ ” and fearful (trans. 132). As a result, her teachers “take the time to let her know what the object is and not be worried about it or not to feel it” (trans. 132). will “ Teachers “put ” (trans. 132-133).
With respect to ’s [] her to make sure that if she’s not paying attention is it because she’s just not interested, or if she’s possibly going into what could become a seizure” (trans. 133). has a (trans. 133). Teachers have been instructed with respect to the and the . The building (trans. 137-138).
The parent signed an enrollment contract on September 1 (Parent’s Ex. M). Tuition at Adelphi for the 2011-2012 school year is $36,750.00 (Parent’s Ex. M). The parent paid a deposit in March 2011and has subsequently paid this tuition in full (Parent’s Exs. N, O; trans. 154).
Findings of Fact and Decision
A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).
I. The Appropriateness of the School District’s Program for The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-
121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The school district bears the burden of demonstrating the appropriateness of the program recommended by its CSE.
A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010.
In this proceeding, the Department did not establish that the program recommended for meets the above standards for two separate and independent reasons. First, the Department did not present evidence with respect to the appropriateness of a 12:1 self-contained special education class for . It might be gleaned from Ms. testimony that the CSE perhaps made this recommendation because, for unexplained reasons, was not a candidate for general education. This is the closest the evidence in the record comes to setting forth a rationale for the CSE’s program recommendation.[3] The uncontroverted evidence (found in ’s IEP, school reports, and Ms. ) establishes that has the following special educational needs: monitoring of her Department (which has the burden of proof on these issues) does not establish that ’s special educational needs would have been addressed and that she would have received a free appropriate public education in the . See 8 N.Y.C.R.R. §200.5(j)(4)(i) (“a decision made by an impartial hearing officer shall be made on substantive grounds based on a determination of whether the student received a free appropriate public education”). Ms. did explain that the CSE recommended that a health paraprofessional be assigned to to address her . However, even assuming that the paraprofessional was sufficient to address ’s medical and , the Department did not demonstrate that the program would have provided with teacher assistance or with sufficient teacher support to address her needs for reinforcement of material, to have information broken down, and to give her multi-sensory instruction and verbal cuing. The Department also did not indicate how ’s and would be addressed in the . This is highlighted by the insufficiently individualized social skills and sensory processing goals. The IEP contains one social skills goal: for to learn and use “at least 3 new pro-social techniques.” This goal does not address the basic and foundational social skills deficits experiences as an has contact, turn-taking and conversation. is not ready for “new pro-social techniques;” she needs (and her IEP should so specify) the basic, conversation. See 8 N.Y.C.R.R. §200.4(d)(2)(iii) (annuals goals “must relate to: (1) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and (2) meeting each of the student’s other educational needs that result from the student’s disability”); Application of a Child with a Disability, No. 04-046 (annual goals must be individualized to child’s needs and specific). Furthermore, the goal to “improve sensory processing skills,” with no further elaboration, is also insufficiently individualized to ’s needs and too vague to guide this component of ’s educational program.
Second, the Department did not present testimony as to whether or how ’s social deficits would be addressed and her medical needs met (in order to secure her safety) at the proposed placement at While the CSE recommended that a health paraprofessional be assigned to , there was no plan in place at to monitor for, and respond to, seizures nor to train the paraprofessional to do so. Just assigning an individual to “monitor” without training or a plan or a protocol in place would not have resulted in a safe school environment for . Ms. did testify that she provides small group work and differentiates instruction for the students in the class based upon their functioning levels and that would have been able to receive her related services at However, Ms. did not explain whether or how ’s would be addressed at , whether or how ’s academic management needs would have been provided for at nor whether or how the goals set forth in ’s IEP would have been addressed at . As a result, it is not possible to conclude that ’s IEP would have been implemented and that her special educational needs would have been addressed at Since the record in this case establishes neither the appropriateness of the recommended program for nor the appropriateness of the placement at , the Department is unable to sustain its burden under the Burlington/Carter analysis.
The parent also challenges the appropriateness of the proposed class on the grounds that it is a third grade class (not a fourth grade class) and that, when the parent visited the school, there was only one girl in the class. At the beginning of the school year, the class was a . The sole fourth grader was moved to another class. In addition, the class had two girls enrolled. For the parent to challenge the class on these particular grounds involves a speculative leap to the conclusion that the class would have been inappropriate for (on these grounds) because never attended the class and the class could have had a different composition had she attended—perhaps the class would have remained a and perhaps there would have been three girls in the class. See Application of the New York City Department of Education, Appeal No. 11-025 at p. 18. Had been enrolled in Ms. class, it is unknown who else would have been placed in the class and how the composition of the class might have been changed. Given the fact that the parents had informed the CSE prior to the beginning of the school year that would be attending , I am not in a position to make findings on anything other than speculation with respect to class composition had attended in September 2012.
The evidence presented at the hearing does not establish that the Department offered a free appropriate public education for the 2011-2012 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.
II. The Appropriateness of Adelphi for
The parent bears the burden of proof concerning the appropriateness of Adelphi for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at Adelphi addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F. 3d at 364 (emphasis added).
requires a school environment in which her identified special education needs are addressed, and Adelphi provides her with such an environment. ’s needs include (as stated above): monitoring ). First and foremost, Adelphi addresses needs through a plan to and by establishing a protocol (in which school staff is trained) to . Second, staff address her —specifically her and and conversation—through the combined efforts of the special education teacher, the classroom teacher, the speech therapist and her guidance counselor.
Her special education teacher in her sessions provides her with academic remediation and reinforcement. receives additional from her classroom teacher. The special education teacher addresses ’s reading comprehension and by breaking down instruction for her, segmenting and re-reading lengthy reading material for comprehension; guided reading; graphic organizers; segmenting and explaining multistep math problems; and multi-sensory approaches to instruction. The classroom teacher also provides specific instruction in “critical thinking skills”—the type of skills needs to continue in grade level curricula as she advances through the later elementary and middle school years.
, specifically the classroom teacher and the , have worked with to improve and . The classroom teacher has used prompting, cuing and visual schedules. Checklists and planners have also assisted at becoming more independent. In addition, ’s teachers have been attentive to ’s and addressed them by providing her with sensory input (the Velcro under her seat).
has improved in the areas of reading comprehension, math, writing, handwriting, and attention. In addition, she has made significant improvements in the area of social skills. She is able to ner with on these skills.
has also benefited from the general education environment of Adelphi and has learned through modeling her typically-developing peers.
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at was appropriate for .
III. Equitable Considerations
With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that the parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, visiting the proposed placement, and expressing her concerns about the proposed placement to the CSE. The parent testified credibly and convincingly that, while in the past she had been seeking a religious education for , over time she had learned about ’s needs and was looking for an educational placement—public school included—which would address those needs.
Evidence was not presented with respect to two claims for relief raised in the hearing request: provision of related services by the Department and transportation. As a result, these claims are dismissed.
Therefore, for all the above reasons, it is ordered that:
The Department of Education shall reimburse the parent for the tuition paid to the for ’s enrollment for the period from September 1, 2011 through and including June 30, 2012. The amount of reimbursement shall not exceed $36,750.00 and shall be paid by the Department within fifteen business days of receipt from the parent of proof of payment and proof of attendance. Dated: May 8, 2012
______________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer
JMB:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request, 1/10/12, 4 pp. B Program Description, Undated, 1 p. D Final Notice of Recommendation, 7/27/11, 2 pp. F Class Schedule, 2011-2012, 1 p. G Progress Update, 2011-2012, 2 pp. H Daily Progress Reports, Various Dates, 1 p. I Special Education Teacher's Report, 3/2012, 1 p. J , 3/2012, 1 p. K Report, 3/2012, 1 p. L Progress Report, 2011-2012, 8 pp. M Enrollment Contract, 2011-2012, 1 p. N Affidavit of Payment, 2011-2012, 1 p. O Proof of Payment, 2011-2012, 2 pp. P Attendance Record, 2011-2012
DEPARTMENT OF EDUCATION
1 IEP, 6/15/2011, 19 pp. 2 Evaluation, 4/14/10, 3 pp. 3 Classroom Observation, 5/12/11, 1 p. 4 CSE Minutes, 6/15/11, 1 p. 5 Final Notice of Recommendation, 7/27/11, 1 p. 6 Ten-Day Notice, 8/22/11, 1 p.
IMPARTIAL HEARING OFFICER
I Notice to Parties Re: Extension, 3/13/12, 1 p.
Footnotes
[1] The prior hearing officer’s documentation of said extension is not available to me for inclusion in the record.
[2] The parent did not challenge in her hearing request the failure of a general education teacher to attend the CSE meeting nor the failure of the CSE to consider whether a general education environment, with supports and services, would be appropriate for . Therefore, these issues are not addressed in this decision.
[3] In addition, the evaluative material available to the CSE (District Ex. 2) was inherently unreliable because scoring appears to have been based on inaccurate age (six years vs. seven years six months) and the testing results are inconsistent (and no efforts were made to inquire as to the inconsistencies). The parent did not challenge the evaluation in the hearing request.