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CORRECTED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 28, 2012
April 9, 2012
April 24, 2012
April 25, 2012
April 26, 2012
Actual Record Close Date: May 24, 2012
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2012
Attorney (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2012
Attorney (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2012
Attorney — Student
Attorney — Student
Attorney — Student
Attorney — DOE
Teacher (via telephone) — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2012
Attorney — Student
Attorney — Student
Parents
Program Director — Student
Teacher (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2012
Attorney — Student
Parents
— DOE
Attorney — DOE
Assistant Principal (via telephone) — DOE
— DOE
On March 23, 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 B. after the recusal of two prior hearing officers. The parents requested the hearing on February 1: (1) to challenge the alleged failure of the Committee on Special Education for District 2 (the “CSE”) to provide with a free appropriate public education for the 2009-2010, 2010-2011 and 2011-2012 school years; (2) to seek reimbursement for a portion, and payment of the remainder, of tuition for their unilateral placement of ”), a non-approved non-public school in Manhattan, for the 2011-2012 school year; and (3) to obtain compensatory services for for the period from February 1, 2010 “to the conclusion of the hearing process.”
A pre-hearing conference commenced on March 28. The parents withdrew their claims with respect to the 2009-2010 school year on the record on April 9 (IHO Ex. I; trans. 32-33). The hearing was conducted on April 24, 25 and 26.[1] At the conclusion of the hearing, the parties requested leave to file written closing statements and memoranda of law. Leave was granted. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.[2]
One of the prior hearing officers extended the compliance date to May 4.[3] On the record on April 26, the Department requested an extension of the compliance date (trans. 475). This extension was granted, and the compliance date was extended to June 3 (see IHO Ex. IV [notice to parties re: factors considered and reasons for extension]). The record closed on May 24 (and the parties were so informed by the hearing officer) upon the receipt by the hearing officer of the parties’ written closing statements and memoranda of law (IHO Exs. VI, VII).
Background
. This classification is not in dispute. She has been special education program at in Brooklyn during the 2009-2010 and 2010-2011 school years. She has attended from September 2011 to the present time. Preliminary Rulings
On March 12, the Department filed a motion to dismiss the parents’ claims with respect to the 2009-2010 school year and all the parents’ claims pursuant to Section 504 of the Rehabilitation Act (IHO Ex. II). The parents filed an opposing memoranda on March 16 (IHO Ex. III). At the pre-hearing conference on March 28, parent’s counsel clarified various issues set forth in the hearing request (trans. 3-20). The parents were asked to specify the compensatory services they were requesting (trans. 22). The parents’ Section 504 claims were dismissed (trans. 23-24). The parents subsequently withdrew their claims with respect to the IEP created in March 2009 and with respect to the 2009-2010 school year (trans. 33; IHO Ex. I). The parents also specified the compensatory services they were seeking for the Department’s alleged failure to provide with a free appropriate public education during the 2010-2011 school year: 210 hours of Special Education Teacher Support Services (“SETSS”) to be provided to basis at her home (trans. 33; IHO Ex. I). The School District’s Case a certified special and general education teacher employed by the Department, testified that she taught a special education class at (trans. 75, 77). was one of her students during the 2009-2010 and 2011-2012 school years (trans. 78). Ms. attended IEP review meetings for in April 2010 and March 2011. Ms. explained that when arrived in her class in September 2009, was unable to use , ,” (trans. 84, 102-103, 116). In addition, (trans. 97-98). By July 2010,
The CSE convened on April 19, 2010 to review s IEP (Department Ex. 3). The CSE recommended that special education class in a District school for a 12-month school year, receive the related services of (four 30 minute sessions per week individually), (three 30 minute sessions per week individually) and one 30 minute session per week individually), and have a 12-month school year. The meeting was attended by both parents, a school psychologist, Ms ) and (Department Ex. 3 at p. 2).
According to Ms. the “team” discussed “all” “issues,” her class portfolio and assessments, reports from related services providers, and IEP goals (trans. 83). Ms. Ansari testified that at the time of the IEP meeting, needed adult support in “every single” ADL area (trans. 87).
The IEP notes that was “following an instructional program based on the Alternate Grade Level Indicators;” and her instructional levels in all areas are specified as “AGLI” (Department Ex. 3 at p. 3; trans. 83-84). Grade or age levels are not listed.
The IEP states that
communicated her “ She had , (Department Ex. 3 at pp. 4-5). Her eye contact was “fleeting and inconsistent” (Department Ex. 3 at p. 7).
The IEP includes the following goals and short-term objectives: “display an awareness of others” by individuals and that she from an adult in order to interact, including with (trans. 88-90). The literacy goal states that her literacy skills to read, write and answer questions” and encompasses the short-term objectives of sorting objects into two categories with skills to solve problems” and encompasses the short-term objectives of sorting objects into two categories with program because she needed a small, highly structured classroom where she could receive adult attention in order to meet her IEP goals (trans. 106). The parents were “
During the 2010-2011 school year, and , (picture exchange system) (trans. 109). Two other students in the class of six children were non-verbal (trans. 109). The other three students in the class were capable of one to two word utterances and used PECS (trans. 110). None of the students were reading, and Ms. worked with the class on learning letters, numbers, shapes and colors through matching, sorting, tracing and copying activities (trans. 110).
During the 2010-2011 school year, Ms. with math instruction relating to counting and sorting objects by color and shape (trans. 111). “started to match” and “was able to trace” (trans. 111). Ms. provided with small group and instruction (trans. 112-114 participated in breakfast and lunch, circle time, yoga, reading and writing time, computer, art, gym, literacy, music and math (trans. 115). She needed adult assistance at mealtimes (trans. 115-116). had a visual schedule; she required physical prompting to use the schedule (trans. 118). She received all the related services listed on her IEP at the school (trans. 123). Ms. communicated with the related services providers and implemented their strategies in the classroom (trans. 124)
Ms. Ansari administered the Brigance Diagnostic Inventory of Early Development II to in October 2009 and May 2010 (Department Ex. 144; trans. 119120). During both administrations of the test, required constant adult “physical support” to engage in the testing concentrate (trans. 122; Department Ex. 14 at p. 3). The assessments revealed that was able to respond to her first name, follow the directions to “ and one shape, state the alphabet from “A” through “E,” match upper case letters through “F” (Department Ex. 14).
Ms. communicated with the parents through a communication notebook. The school offered monthly parent training workshops to parents (trans.128-129). The parents “never” expressed any disagreement to Ms. regarding the school or Ms. work with (trans. 130).
By the end of the 2010-2011 school year, was able to sit for 30 minutes, feed herself (using her hands; she was unable to use utensils) (trans. 113, 116). She made progress with her eye contact, holding a pencil “properly and not trying to put it in her mouth” and using it to trace lines and shapes, in and trans. 126). remained “completely impossible” for (trans. 133).
s end of year report card for the 2010-2011 school year shows that made some improvements in the areas of attention, participation in class activities, using picture symbols, when looking at books, sorting objects, recognizing basic shapes, making eye contact, sharing, following classroom routines, and participating in activities (Department Ex. 15 at p. 4; trans. 152).
By the time left in June 2011, she still was unable to use the toilet independently (trans. 104). During the two years that had attended Ms. s class, Ms. and the classroom paraprofessional were able to get but were to increase (see trans. 104).
The CSE convened on March 15, 2011 to review s IEP (Department Ex. 2). The CSE recommended that continue to attend a special education class in a District 4 Ms. explained that all the handwriting on the document is hers and that it is difficult to read because she wrote in colored pencils as required by the protocol of the test. The document entered in evidence was the best copy that the Department was able to produce of the original testing form.
75 school, receive the related services of speech therapy (four 30 minute sessions per week individually), occupational therapy (three 30 minute sessions per week individually) and counseling (one 30 minute session per week individually), and have a 12-month school year. The meeting was attended by both parents, a school psychologist, Ms. Ms. , and an (Department Ex. 2 at p. 2). According to Ms. , everyone at the meeting agreed with the recommendations (trans. 136, 142).
The IEP notes that was “following an instructional program based on the Alternate Grade Level Indicators;” and her instructional levels in all areas are specified as “AGLI” (Department Ex. 2 at p. 3). Grade and age levels are not listed.
The IEP states that “requires a highly structured environment with small group instruction and repetition of work” and that she “is making progress in all developmental areas” (Department Ex. 2 at p. 3). However, she “ of ” (Department Ex. 2 at p. 7). She was “ ” (Department Ex. 2 at p. 8; see also trans. 138-142).
communicated her “ (although inconsistently). She did not “vocalize consistently,” required “modeling when using items functionally,” needed “support when interacting with peers during structured classroom activities” (Department Ex. 2 at p. 16).
The IEP includes the following goals and short-term objectives: put on and remove outerwear; improve eye contact (first with minimal prompting and then without redirection); follow simple directions presented to her simple actions; use PECS; develop play skills; and “ activity for 10 minutes, making eye contact and maintaining “personal space.” The literacy goal states that “will use her literacy skills to read, write and answer questions” and encompasses the short-term objectives of coloring within lined areas, tracing lines and shapes and tracing letters, all with verbal and physical prompts. The math goal states that “will use her math skills to solve problems” and encompasses the short-term objectives of matching numbers 1 through 10 and copying straight and curved lines with physical prompts in a setting. Meeting participants did not raise any objections to the goals (trans. 144-145).
Ms. acknowledged that there were no goals to address toileting or to address s behaviors such as (trans. 155, 157, 159). was unable to use (trans. 158).
No programs other than the were discussed at the meeting (trans. 156-157, 163). Ms. testified that the parents never requested a different program or additional services for and were “glad [for] the services provided to her in school” (trans. 165, 170).
,a with training in testified that she was employed by the Department at P. 77 and had provided speech and language therapy to during the 2009-2010 and 20102011 school years (trans. 176). When Ms. began to work with in September 2009, was non-verbal, unable to initiate communication, made a few inconsistent verbal approximations, and had difficulties attending to activities (trans. 178, 187). Early in the 2009-2010 school year, Ms. assessed s functional use of objects (Department Ex. 4 at pp. 2-3; trans. 177).[5] did not use most of the objects in any functional manner; rather, she put them in her mouth. She played with a few toys appropriately.
Ms. created a PECS book for and introduced her to the pictures, the objects they represented, and the concept of using the pictures to communicate with another person (trans. 178-180). learned to exchange a picture for a desired item during the 2009-2010 school year (trans. 182). During the 2010-2011 school year, Ms. continued to work with on discriminating among pictures and using more than one symbol in a “sentence strip” (trans. 197).
also had difficulties attending to activities (trans. 187-188). When given an item, she would put it in her mouth rather than use it functionally. Ms. provided with “full physical prompting” in how to use, for example, a slinky or a toy vehicle, after requested the item (trans. 188). By the end of the 2009-2010 school year, still put items in her mouth but to a lesser degree than in September 2009 (trans. 189).
Ms. assessed aspects of ’s communication skills and ability to use objects functionally in September and October 2010 (Department Ex. 6; trans. 211-212). Ms. read her handwritten notations into the record. During the assessment, was able to pull the evaluator’s hand to request assistance and to request “highly motivating” food, a massage and a swing (trans. 213-214). She took objects without exchanging a PECS symbol and pushed away and/or screamed in order to reject undesired objects. was able to use the following objects functionally: crayon and papers, a door handle, a book bag, a toy bus, a toy airplane and a massager (trans. 214-215).
Ms. administered the Non-Speech Test to in October 2010 (Department Ex. 7; trans. 215-217). This test assesses the fundamental receptive and vocalization skills of children (trans. 215). was able to maintain eye contact, respond to Ms. s approach, attend and listen “momentarily” to a voice, attend and look “momentarily” at visual stimulation, smile as Ms. spoke to her, turn her head towards a sound source, respond to her own name, react to “no,” show interest in an object for 30 seconds, and follow a verbal command without prompting gestures “inconsistently” (Department Ex. 7 at p. 2).
During the 2010-2011 school year, Ms. sent notes home to the parents (Department Ex. 16). In October, Ms. wrote that: “We have been working on exchanging a picture symbol to request items,” “on identifying objects with a picture shown to her, following simple directions using simple actions when shown a picture symbol and using items functionally” (Department Ex. 6 at p. 1; trans. 222). Throughout the remainder of the fall, Ms. continued to work with on discriminating between objects, participating in classroom activities, and identifying objects (Department Ex. 6 at pp. 2-3; trans. 223-224). In January, Ms. reported that was attending for longer periods of time and “able to complete simple tasks with minimal assistance” (Department Ex. 16 at p. 4; trans. 224). In early May, Ms. stated that was “working on discriminating between pictures using her communication book. She is becoming more independent during [joint activity routines]” with “less and less physical assistance” (Department Ex. 16 at p. 6; trans. 225226).
During the 2010-2011 school year, continued to make some verbal approximations “inconsistently” (trans. 190). Her attention to activities increased through Ms. s use of “joint attention routines” in which was taught to perform activities, interact with her classmates, and use PECS in a more independent manner (trans. 191-193). Ms. addressed with the speech and language goals on IEP and made progress towards those goals in terms of discriminating PECS pictures, combining symbols into sentences, becoming more aware of her classroom environment, following classroom routines, and responding to simple directions (Department Ex. 3; trans. 195199).
In her end of year summary for the 2010-2011 school year, Ms. reported that was using a communication book, responded to physical, visual and verbal prompting, and was “an independent communicator during [joint activity routine] activities. She knows the routines” (Department Ex. 4; see also trans. 207).6 Ms. read into the record her handwritten notations recording her observations of ’s use of objects (trans. 209). was unable to use the objects (various toys and utensils) appropriately (except for placing a purse/bag over her shoulder), even with modeling (except with regard to two toys), and put most of the items in her mouth (trans. 209-211).
Ms. participated in the March 2011 IEP meeting (trans. 200). She explained the annual goals and short-term objectives set forth in this IEP and how these goals and objectives addressed s deficits. The goals and objectives focused on PECS, functional use of items, initiating communication, and following simple routines within the classroom environment (trans. 202-204). Had attended during the 2011-2012 school year, Ms. would have been able to implement the goals and objectives set forth in the IEP (trans. 228). The Parent’s Case was evaluated in January 2009 (Parent’s Ex. L). The evaluating psychologist observed that made “fleeting” eye contact, was “often distracted by internal as well as external distractions, ” unrelated, and “required a lot of encouragement, verbal and physical prompting, and redirection to respond to” testing tasks (Parent’s Ex. L at pp. 12). was unable to maintain eye contact or to use speech to communicate (Parent’s Ex. L). On the Stanford-Binet Intelligence Scales (5th ed.), attained a nonverbal IQ score of , a verbal IQ score of , and a full scale IQ score of . Each of these scores was below the . On the Vineland II Adaptive Behavior Scales, was found to perform in the low range across all domains. In the communication domain, understood “yes” and “no” but only sometimes responded to her name, was , and did not point to pictures of common objects as they were named. She . With respect to adaptive functioning, was “in the process of being ” (Parent’s Ex. L at pp. 3-5).
See footnote above.
A was conducted in August 2010 (Parent’s Ex. J). The noted that had been diagnosed with . demonstrated stereotypical motor movements such as shaking her hands, was , . She was unable to respond to any of the questions on the WPPSI
III. The evaluator stated that her “attention, concentration, perception, and judgment were .” He “estimated” her IQ to be in the “ .” s score on the Vineland Adaptive Behavior Scales was a 56, placing her general adaptive . The evaluator diagnosed with (Parent’s Ex. K at p. 5).
, the program director of the , testified that she was a licensed clinical social worker, has a master’s degree in education and was New York State certified as a school administration supervisor and a school district administrator (trans. 246). is a school for students ages four through with “ and communicating.” Most of the students at (trans. 258). The “DIR” method (developmental individual difference relationship-based model) is used at and is based on a theory of child development involving six basic developmental levels that children must master before succeeding in a formal educational setting (trans. 251-242). The first level is regulation—involving and ; ; sensory integration (trans. 268-269).
curriculum is based upon the New York State common core standards adapted to the needs and functioning levels of the students (trans. 270-271). The school has both a . Adaptive physical education is provided in the regular gym. The is used mainly by the occupational therapist to work on and provide “them input at the level that they need it to . . . to be able to remain regulated for longer periods of time throughout the day” (trans. 273). All the classrooms in the school and have special fluorescent lighting fixtures which do not buzz or flicker because the buzzing and flickering of fluorescent lights created difficulties for students with issues (trans. 275, 277).
Students at are grouped into classes based upon their developmental levels, age, and (trans. 278). Most classes include
Each family is assigned a social worker who provides support, training and counseling to parents and who has weekly contact with the family. also provides parent support groups and weekly parent education groups (trans. 261-262).
7
has been a student at since September 2011 (trans. 279). Her teacher is Ms. who is “about to finish” a master’s degree in and has “ ” a master’s degree program in special education (trans. 280, 370-371). There are seven children (five boys and two girls), including , in the class (trans. 281). The students range in age from six to ten years. The includes teaching assistants, one of whom has a bachelor’s degree and two of whom are working on their masters’ degrees in special education (trans. 282283). The academic functioning levels of the seven students range from pre-kindergarten to kindergarten; is at the “middle to low end” of the class and is working on prekindergarten/beginning academic skills. The higher functioning students in the class are “role models for her so that she can be challenged” (trans. 295). The students in the class all . The students are to “ ”—some of the students “have some language” (trans. 296). They are able to relate to the adults in the classroom and, to a more limited extent, with their (trans. 302).
Each student engages in individualized sensory activities. early in the school year, it would take 30 minutes of sensory input to re-regulate ; at the time of the hearing, three to five minutes of sensory input was sufficient to re-regulate her (trans. 323).
needs support in order to transition from one activity to another. Pictures show her what is coming next; and “the more support she gets from an adult, the better she does in transitions” (trans. 299).
In English language arts, the class is working on fairly tales through teacher readalouds as a group activity (trans. 305). There is also individual and small group work on letter recognition, phonemic awareness and sight words (trans. 305). At the beginning of the school year, did not understand “the purpose of books” and had difficulty attending to the read-alouds (trans. 308). is working on letter recognition and picture symbols (trans. 316). has made advances in English language arts: she is now able to listen to and understand a story, is beginning to “show anticipation of what’s happening next,” and is able to “ ” (trans. 317).
In math, was working on identifying and understanding the meaning of numbers, time and space, and spatial concepts. She has made gains towards
Ms. referred to ” in her testimony.
understanding these basic math concepts and is beginning to understand the numbers one, two and three (Parent’s Ex. C at p. 3; trans. 306, 317-318).
Science consists of hands-on activities with that involve scientific concepts, such as observation (trans. 303-304). Social studies consists of activities involving understanding self, the classroom community, the school community and the outside community, including how to navigate sidewalks, stop at stop lights, and not bump into people (trans. 304).
are addressed in the classroom throughout the school day, with the adults facilitating interactions among the students (trans. 306-307). At the beginning of the school year, did not interact with adults or peers. If an adult initiated communication with her, she would “ ” and did not understand that “these adults could be helpful to her” (trans. 309).
With respect to activities of daily living, when entered the school in September 2011, she “needed much more adult support to be able to go through her day,” taking off her coat, putting her things away, and going into the bathroom on a regular schedule (trans. 310). these skills. is now independent with but needs reminders to use the bathroom; she also needs (trans. 321). (trans. 325). has, overall, become more independent in her ADL skills since September (trans. 322).
At the beginning of the school year, communicated through gestures and vocalizations. s have moved closer to verbal approximations of words (trans. 308). Ms. (the ) and the occupational therapist have been working with on “pairing verbal language with pictures with communicative intent,” and Ms. has been working with her to (through PROMPT therapy and other means) to make “CV” and “CVC” sound combinations (trans. 319-320). has improved her ability to use more sounds and verbal word approximations (trans. 320). at but she is unable to use the symbols consistently—“she has Staff is working with on understanding that the picture symbols have meaning, which is the “beginning level of ” (trans. 383-384).
receives the related services of therapy, and counseling at (trans. 283). Her related services providers, the classroom teacher and assistant teachers, and other educational professions working with students meet weekly as an interdisciplinary team.
Staff members can also meet before and after school each day to discuss students (trans. 284).
s schedule at includes daily periods for skills, morning meeting/social studies, English language arts, sensory/fine motor (four days per week), lunch, recess, and an end of day meeting (Parent’s Ex. B; trans. 345-347). The schedule also includes periods for , , occupational therapy movement group, gym, “Floortime/Thinking Goes to School/Foundational Math,” music and community walk (trans. 349-355).
personnel prepared a progress report for in December 2011 (Parent’s Ex. C). The report describes as “a who primarily , ” and who “ throughout the day by standing on her head, and walking around the classroom” (Parent’s Ex. C at p. 1). Since September, she has improved her ability to remain attentive during times when the teacher is reading a story to the class. She also . In December, she was able to attend to this activity for up to seven minutes “without becoming dysregulated” (Parent’s Ex. C at p. 2). Since September, has learned to follow “around familiar routines with less adult support” (Parent’s Ex. C at p. 3). During morning meeting, she will “inconsistently choose her own picture and name” (id).
With respect to ADL skills, the report notes that was able to use the bathroom independently but does not ask to use the bathroom. She was able to wash and dry her hands with minimal prompting from staff (Parent’s Ex. C at p. 4).
Ms. was an appropriate placement for had “made gains across all developmental areas” since September 2011. has increased her use of (trans. 323324).
The parent testified that ” with “ ” and that the family is “starting to see lots of improvement” (trans. 425). The parents noticed delays in when was about two years of age. They had evaluated to determine her eligibility for (trans. 426). was diagnosed with (trans. 450). She subsequently attended a full day preschool program at for two years at the recommendation of the Department’s CPSE (trans. 428-429). “Floor Time” was a methodology employed The parent stated that as a result of this methodology, and “ members for the first time (trans. 429-430).
was enrolled in in September 2009 (trans. 432). When she did not need to wear a , she was . In addition, . When she came home she was on the . She d[i]dn’t want to see anyone. She started holding onto [her] ” and chewing on her sleeve (trans. 434-435).
The parent attended a CSE meeting for the 2010-2011 school year; he stated that this meeting lasted about ten to fifteen minutes (trans. 433). The parents were concerned that “went backwards” during the 2010-2011 school year but “didn’t find any other options” and “there was nothing available” for her (trans. 434). The parent stated that he asked personnel at for more services for such as Floor Time and support and requested that her work “go a little bit lower to her level” (trans. 435). The parents also expressed to school personnel their concerns about ’s ” (trans. 437). The parent testified that he sent in photographs as requested (trans. 437).
The parents attended the March 2011 CSE meeting. The parents thought that this meeting was “a staff meeting to discuss [ s] progress” (trans. 438). The meeting lasted between ten and fifteen minutes, and school personnel “just told us how well she’s doing, and how , and that we should just continue” (trans. 439). According to the parent, the parents stated at the meeting that they “really, really feel that we need more stuff” (trans. 439). The parents felt that the decision to continue “was made before we even showed up at the meeting;” “[t]he papers were just there. Each teacher said what she had to say. They signed and left” (trans. 439).
At the meeting, the parents informed school staff that they would be sending to an overnight camp for children with special needs during the summer and asked whether they should “ ” student. According to the parent, the “principal instructed [them] to sign as a 12 and she’ll past the credits, the expenses, from the public school to the camp. She said it’s been done in the past and it’s an acceptable thing. So based on that, [they] signed as a ” (trans. 454). The Department did not pay for the camp.
During summer 2011, attended the special needs overnight summer camp, in , where she made progress. For example, she learned to respond to and say her full name in a sentence, to speak the names of all her siblings, and say “mommy” (trans. 441, 456). At the camp, had a counselor assigned to her 24 hours per day (trans.
455). The parents “realized how two years of her life was literally wasted” at (trans. 441).
Towards the end of the summer, the parents visited (trans. 442). The parents believed that it would be a good “fit” for —it was small and welcoming, and she would not be “lost” in the school (trans. 442-443). The parents have been “very satisfied” with . At home, in activities such as setting the table, some food preparation tasks, and engaging with her (trans. 443-444).
currently communicates by carrying items to people or bringing the person to an object and by (trans. 426-427). She with her father by face and then shows him what she wants (trans. 430). is now (trans. 427). When
By letter dated September 1, 2011, and mailed on or about that date, the parents informed the CSE that they were enrolling for the 2011-2012 school year and would be seeking payment of the tuition from the Department (Parent’s Ex. H; trans. 458). The parents explained that they were rejecting the Department’s proposed program at P. 77 because
The enrollment contract, which the parent signed on September 9, 2011, states that tuition for the period from September 20, 2011 through June 22, 2012 was $78,960.00 (Parent’s Ex. D; trans. 288). An addendum to the contract sets forth a payment schedules and states:
The balance of the tuition will become due upon payment by the Department . . . . If Payment is not received by June 1, 2012, a new Payment Schedule may be put into place and the remaining balance may become due immediately . .
. . Parent(s) represent that their financial status warrants direct prospective payment of tuition by the [Department]. .
. . On the basis of this representation, the School has agreed to enroll the Student on the basis of the Payment Schedule set out above.
* * * *
If Parent(s) does/do not qualify financially for prospective payment of tuition or Parent(s) are/is denied payment by a final decision resolving their claim for prospective payment of tuition, Parents will remain responsible for tuition costs per the Enrollment Agreement and the balance of the Student’s tuition will be due immediately (Parent’s Ex. E).
The parents made a payment of $1,000.00 in September 2011 and payments of $2,000.00 in November 2011 and January 2012, and another payment of $1,500 (Parent’s Exs. G, H). Ms. created a payment schedule for the parents because “they were going for prospective funding from the Department” (trans. 289). If the parents were unsuccessful in obtaining payment from the Department, according to , the parents would owe “the balance due” to the school (trans. 290). School personnel would try to collect this amount by setting up a payment schedule for the parents; if the parents did not comply with the schedule, school personnel “would refer it to the legal department of the school” (trans. 290). Ms. testified that she has made such referrals to the legal department, and the legal department then worked with the parents to secure payment (trans. 290-291). No student has been removed from during the current school year because their parents have been unable to pay tuition (trans. 377).
The parents submitted in evidence sufficient documentation to demonstrate that they were unable to pay the full tuition at the (Parent’s Ex. I [2011 federal and state income tax returns]; see also trans. 445, 457).
The parent testified that if the Department had offered an appropriate placement for the 2011-2012 school year, he would have accepted it (trans. 445).
, a certified educator of children with ( ), testified that that she was teacher of a self-contained second grade special education class at a non-public school and was also a Special Education Itinerant Teacher (“SEIT”) (trans. 404-407, 420-421). Ms. for six weeks during each of the summers of 2008 and 2009 at a education program (trans. 406-407).
Ms. during the summer of 2010 because, at the time, she was working with (at no charge to the parents) and was looking for “some advice” and what school personnel were “doing in school to see if we could implement it at home” (trans. 411). The observation lasted approximately one hour. During this time period, the class engaged in a circle time activity about the day and distinguishing between yesterday, today and tomorrow. was able to sit during the activity but “didn’t know what was going on. Everything was like very over her head. She sat nicely but she really wasn’t following through” (trans. 412). Snack time followed, and had “everything . . . done” for her—the paraprofessional got her snack out of and gave it to her and got her a drink. Ms. should have been learning how to do these tasks “independently and not always being helped to do things” (trans. 412-413). Snack was followed by a math period, during which was in a group by herself tracing numbers with a paraprofessional. Ms. did not understand the concept of numbers—tracing numbers was not a “functional” activity for her. According to Ms. , needed to be working on functional communication, socialization and ADL skills, particularly toileting (trans. 414, 417). Ms. stated that was the lowest functioning student in the class. The other students were verbal and seemed to understand the circle time activity and the math activities they were doing. was not and at school. She did not appear, to Ms. to be benefiting from the instruction in the class (trans. 414-415). The Department’s Rebuttal Case , the assistant principal , testified that she was assigned to the during the 2009-2010 and 2010-2011 school years (trans. 489-490). Ms. was a school for children with autism and provided students with a 12-month school year program (trans. 490-491). while Ms. was assigned to the school. Ms. also toured the school with the parents in late summer 2009, prior to ’s enrollment at the school (trans. 492). During the time that was enrolled at the school, Ms. had conversations
8 with the parents at IEP meetings (trans. 492-493). At some point, s mother telephoned Ms. and asked her to send a letter and s IEP to a summer camp, , in anticipation of attending the camp for summer 2011 (trans. 494-495, 502). Ms. sent the material to the camp. She never discussed with the parents possible payment for the camp by the Department; she did not recall the parents ever asking her for payment for the camp (trans. 495). The parents did not discuss with Ms. changing ’s program from a 12month to a 10-month program. The parents did not inform Ms. that would not be attending as of July 2011, except to inform her that they were applying for to attend summer camp (trans. 496).
The parents never requested additional services for from Ms. nor did they ever ask her about “Floor Time” or one-to-one instruction for (trans. 498). Ms. stated that the parents did not express any disagreement or dissatisfaction with (trans. 498). The parents had stated to her that they “were very pleased” with the services Ms. did not sign in as an attendee at ’s IEP meetings.
received at the school and, in June 2011, “sent a beautiful letter to the staff of the classroom” stating “how pleased” and “grateful” they were for what staff had “done” for (trans. 498).9
Findings of Fact and Decision
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).
I. The 2011-2012 School Year
For the current school year, the parents are seeking reimbursement and payment for ’s tuition expenses at 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, 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).
A. The Appropriateness of the School District’s Program for
This letter was not offered in evidence.
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.
1. Alleged Procedural Violations
The parents contend that the following procedural violations rise to the level of procedural inadequacies depriving a free appropriate public education: (1) the parents were deprived of their right to meaningfully participate in the development of the March 2011 IEP because the meeting lasted fifteen minutes and their input was not considered because the outcome of the meeting had been predetermined (Parents’ Brief at pp. 5-6); and (2) the CSE was improperly comprised because a district representative was not in attendance (Parents’ Brief at pp. 7-8).
The parent testified that the meeting lasted ten to fifteen minutes, that school personnel gave their input and then the meeting was over, and that he felt that the outcome had been decided before the meeting because the teachers made their statements, “signed and left.” In developing the recommendations for a student’s IEP, the CSE must consider “the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations . . . .” 8 N.Y.C.R.R. § 200.4(d)(2). A CSE is explicitly required to consider any “concerns” parents have for “enhancing the education of their child” when creating an IEP. 20 U.S.C. §1414(d)(3)(A)(ii); see also 8 N.Y.C.R.R. §200.3(a)(1)(i), 8 N.Y.C.R.R. §200.3(c)(2)(i). Planning a child’s special education program is a “collaborative process” involving educators and the parent. Schaffer v. Weast, 546 U.S. 49, 51 (2005). However, the right to participate does not include veto power over all or any aspect of an IEP with which a parent does not agree. T.Y. v. New York City Department of Education, 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010); Application of a Student with a Disability, Appeal No. 12-009.
The Department argues that the outcome of the CSE meeting was not predetermined because the parents participated in the meeting and discussed ’s progress and the IEP goals (Department’s Brief at p. 16). I find the parent’s testimony that the meeting lasted ten to fifteen minutes credible. The parent, unlike school personnel, attends only one IEP meeting per year—for his own child. It is undisputed that both ’s mother and father attended the meeting. It is also undisputed that had and has It is beyond belief these needs (and the special education and related services to address them) could have been discussed (along with the IEP goals and alleged progress) in a period of time of fifteen minutes. The discussion of a joint school(which clearly did not occur) should have consumed at least ten to fifteen minutes alone. The testimony of the Department’s witnesses that the parents did not object to the program recommendation or to the IEP goals is not an indicia of the adequacy of parental input and participation in a CSE meeting. Perhaps the outcome of the meeting had not been pre-determined in some separate undisclosed meeting by school personnel prior to the CSE meeting with the parents. However, given the short duration of the meeting and the complexities of ’s needs, which should have required a time-consuming discussion, the parents were deprived of their opportunity to engage in educational planning for their daughter and to share in a meaningful way their concerns about their daughter’s education and their input about her needs. A fifteen minute meeting for a child such as is not in accord with the “collaborative process” envisioned by the IDEA or by the Supreme Court in Schaffer, 546 U.S. at 51. This procedural inadequacy—the failure of the CSE to consider in a meaningful manner parental input and concerns—impeded ’s right to a free appropriate public education and “caused a deprivation of educational benefits” because her varied, involved and complex needs could not have been discussed adequately (particularly in the areas of ) nor could there have been a meaningful and useful discussion to create and/or review goals and recommend services to address these needs. See S.F. v. New York City Department of Education, 2011 U.S. Distr. LEXIS 129672 (S.D.N.Y. Nov. 9, 2011) (while it is permissible to review draft IEP goals at a CSE meeting, such a draft “does not serve to fulfill . . . the requirement that the parent be given the opportunity to participated in a discussion of goals at the CSE meeting). And, in fact, goals and services in important areas, particularly toileting and sensory processing were not created or recommended for . In addition, this procedural inadequacy “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to because such meaningful discussions involving the parents could not have occurred within the time frame of the meeting.
The parents also assert that the CSE was improperly comprised because a district representative was not present and because Ms. was not qualified to serve as a district representative. The regulation states that a CSE must include, among other individuals, an individual who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources in the district. 20 U.S.C. §1414(d)(1)(B)(iv); 8 N.Y.C.R.R. §200.3(a)(1)(v) (emphasis added). Ms. Ansari, as a certified special and general education teacher, was qualified to provide special education and should have been knowledgeable about the general education curriculum. There is no indication in the record, however, that Ms. was knowledgeable about the availability of resources in the district. In the very particular circumstances of this case, this deficiency rises to the level of impeding ’s right to a free appropriate public education. Since there did not appear to be anyone at the meeting who could describe the range of services that were available to address ’s identified special educational needs (such as ), it is reasonable to conclude that ’s ability to access needed services was impeded simply by virtue of the fact that an individual with an overview of the variety of services available to disabled children was not present at the meeting. Such a conclusion is borne out by the total lack of , and services to address such goals, in the IEP.
2. Appropriateness of the Program Offered to
A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).
An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance and “indicate[s] the individual needs of the student” in these areas and the areas of social development, physical development (including sensory development) and management needs. 8 N.Y.C.R.R. §200.4(d)(2)(i); 8 N.Y.C.R.R. §200.1(ww)(3)(i). The IEP must also establish annual goals designed to meet the student’s needs resulting from the student’s disability enabling her to make progress in the general education curriculum and provide for the use of appropriate special education services. 8 N.Y.C.R.R.
§200.4(d)(2)(iii); 8 N.Y.C.R.R. §200.4(d)(2)(v); see also Application of the New York City Department of Education, Appeal No. 11-132.
The parents argue that the March 2011 IEP does not accurately reflect ’s present levels of academic achievement, functional performance nor special educational needs (Parents’ Brief at p. 9). The parents are correct: the description of in the IEP is vague, inconsistent and does not adequately describe . For example, the IEP does not provide details with respect to ’s delays nor how they impact ’s learning. The absence of any reference to ’s . Furthermore, the IEP does not set forth any grade or, more appropriately for , age levels to describe ’s functioning. Listing “AGLI” does not provide such information.
The deficiencies in the IEP’s description of carry over to deficiencies in the goals created for her. Section 200.4(d)(2)(iii)(a) of the New York State regulations mandates that IEPs include measurable annual goals:
including academic and functional goals, consistent with the student’s needs and abilities. The measurable annual 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.
The IEP created for did not meet the above standard. First and foremost, the IEP did not contain any goals relating to toileting. It is undisputed that at the time the March 2011 IEP was created, was unable to use the needs independently. Second, despite the statement that experienced “ , self-care and sensory processing, there are no goals relating to visual motor skills nor to sensory processing. There is one self-care goal: donning and doffing outerwear. Given ’s extensive self-care deficits (toileting, feeding herself), this goal was not sufficient to address her self-care needs. See Application of a Child with a Disability, No. 04-046 (annual goals must be individualized to child’s needs and specific). In addition, there are no goals aimed at ’s and to enable her to become more available for learning.
The parents contend that the Department did not provide a FAPE because individualized parent training and counseling was not offered to them (Parents’ Brief at p. 17). School districts in New York are required to provide parents of children with “parent counseling and training . . . for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. § 200.13(d). Parent training and counseling is defined as “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.” 8 N.Y.C.R.R. §200.1(kk). As the Department correctly argues (Department Brief at p. 16), failure to include parent training on an IEP does not result in a denial of FAPE. Application of a Child with a Disability, Appeal No. 11-032 at p. 20. See also M.M. and H.M. v. New York City Department of Education, 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008). According to Ms. offered monthly parent training workshops to parents. In the various Southern and Eastern District cases involving failures of the Department to provide parent training and counseling, the Department (while its CSEs did not specify parent training and counseling on the children’s IEPs) did make this service available to parents as part of the programs at the recommended placements. See, e.g., R.K. v. New York City Department of Education, 2011 U.S. Dist. LEXIS 32248 at 70 (E.D.N.Y. Jan. 21, 2011). As a result, failure to specify parent training and counseling on ’s IEP (in and of itself) did not result in a deprivation of a free appropriate education.
However, as the court noted in R.K., “while each regulatory violation may not in isolation deprive a student of a FAPE, the Court must assess all of the alleged deficiencies collectively to determine whether the IEP ‘as a whole’ was sufficient” and held that the failure to provide and parent training and counseling “not only violated legal requirements, but, when taken together with other flaws, constituted significant deficiencies that deprived [the child] of a FAPE.” 2011 U.S. Dist. LEXIS 32248 at 74 (emphasis in original). ’s parents clearly needed training targeted to ’s individualized needs, most specifically in the ( ). Since was unable to use the bathroom, and classroom staff efforts since September 2009 had been unsuccessful, Ms. and/or other appropriate school staff should have developed a (whether or not included in the IEP) which included parental training in order for to learn this and other self-care skills and use them both in school and outside of school. As in R.K., the lack of individualized parent training would not in and of itself otherwise constitute a denial of a free appropriate public education; but when “piled on” to the other deficiencies in ’s program, became part of the complex of significant inadequacies depriving of a free appropriate public education.
As a result of both the procedural and substantive inadequacies in the program created for for the 2011-2012 school year, 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 parents prevail with respect to the first prong of the Burlington/Carter analysis.
B. The Appropriateness of for
The parent bears the burden of proof concerning the appropriateness of for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459
F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F. 3d at 364 (emphasis added).
requires a school environment in which her significant delays and special educational needs are addressed. ddresses ’s needs by providing her with a small class, significant adult support (including individualized attention) and an environment in which her are addressed.
staff has created an individualized for that is used in a structured manner throughout the day to address , to avoid , and to promote successful transitions. has benefitted from these interventions and has become more “regulated” and available for learning. now needs less time engaged in in order to “ and attend to learning activities.
is working on academic skills. She is now able to attend to and, most importantly, has increased her attention to such activities and begun to demonstrate that she is comprehending the stories read to the class. She is also working on letter recognition. In addition, through the instruction provided by her teachers, is comprehending basic number concepts.
The Department argues that has regressed in her use of while at (Department Brief at p. 21). However, the testimony of both the witnesses and Ms. does not reflect such regression— was working on the early levels of (with phase four still not evidence of consistent use of picture symbols and picture discrimination) while at and was unable to use the picture symbols consistently despite working on for two school years. At , has learned to communicate with pictures “more consistently,” and staff is working with her on understanding that the picture symbols have meaning. At the end of the 2010-2011 school year, Ms. was still working with on the concept that the pictures have meanings and that the pictures refer to different items. has not regressed in her use of —she had difficulties with using ; she continued to work on and has made some slow progress. In addition, has increased her vocalizations and verbal approximations of words through speech therapy at , which includes PROMPT therapy to develop her oral motor capacity.
also addresses ’s through adult facilitation of interactions between and her classmates. School staff also provide with support for her and work with her on developing her functioning in this area. She has become more independent in her since the beginning of the school year.
provides with the related services of , . The school also provides her parents with parent training and support on an individual basis and through weekly parent education groups. Her teachers and therapists meet weekly, as well as before and after school, to collaborate and discuss students’ needs. has benefitted from all these various special education services, supports and interventions at . She is supported, particularly, in the area of her sensory needs and , is available for learning, and has learned. She has increased the time she spends , increased her , increased her interactions with adults, improved her , and is developing .
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at is appropriate for .
C. 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 and enrolling at for two years. The parents contend that they apprised school personnel of their concerns about ’s special education program; school personnel deny such statements. The parents could have, perhaps, been more forceful or perhaps put their concerns in writing during the 20092010 and 2010-2011 school years.[10] However, not every parent “creates a record” and ’s parents were trying to do the best they could within the public school system to obtain an education for their daughter. The parents accepted what they were offered by the Department for the 2009-2010 and 2010-2011 school years—they were offered one program, , and were not provided with any other options.
The parent also established, based upon the evidence in the record of the family’s income, that he does not have the ability to pay the entire amount of tuition and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Burlington; and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. See Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403, 428-429 (S.D.N.Y. 2011). Equitable considerations favor awarding relief to the parents.
Reimbursement may be reduced or denied if parents fail to provide the school district with notice of their intent to place their child at a non-public school at public expense. 34 C.F.R. §300.148(d)(1); 34 C.F.R. §300.403(d). Such notice may be provided at the most recent CSE meeting prior to the removal of the child from the public school or by written notice ten business days (including any holidays that occur on a business days) before such removal. 34 C.F.R. §300.148(d)(1). The parents provided prompt, timely notice of their decision to remove from P. 77 on or about September 1. The parent clearly testified that, even though had attended a summer camp during the summer session of 2011, the parents made the decision to place her at until the end of summer 2011. The parents gave prompt notice in writing to the CSE on or about September 1 that would be attending . did not enter until on or about September 20. The Department’s argument that notice must be given prior to the start of the school year (Department Brief at p. 26-27) is not supported by the relevant regulations. The above-cite regulations require parents to provide written notice prior to “removal.” Since did not start at until late September, she was not “removed” until that time. Furthermore, giving credence to the Department’s argument would bar any parent from transferring a child to a non-public school during the school year. As a result, there are no grounds to reduce or deny reimbursement/payment in this proceeding based upon a lack of parental notice.
II. 2010-2011 School Year
The parents are seeking compensatory services for for the alleged failure of the Department to provide with a free appropriate public education during the 20102011 school year and “to the conclusion of the hearing process.” Any claim for compensatory services for the period commencing July 1, 2011 is obviated by the above ruling to provide the parents with payment/reimbursement for and the fact that the parents did not make any claims for the summer camp tuition. As a result, the claim considered in this decision is a claim for compensatory education for the period from July 1, 2010 through June 30, 2011.[11] The parents are seeking 210 hours of at-home one-toone SETSS for .
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); Application of the New York City Department of Education, Appeal No. 11-004. Compensatory educational relief may be awarded to a student with a disability who remains eligible for services under the IDEA. Application of the New York City Department of Education, Appeal No. 11-132. Here in the Second Circuit, compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if they have been denied a free appropriate public education. P. v. Newington Board of Education, 546 F. 3d 111, 123 (2nd Cir. 2008) (IDEA “allows a hearing officer to fashion an appropriate remedy” and “compensatory education is an available option . . . to make up for” a denial of a free appropriate public education”). Compensatory “additional services” have been awarded to students who remain eligible to attend school and have been denied appropriate services, “if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19.
The Department argues that was provided with appropriate special education and related services and made some progress during the 2010-2011 school year: she learned to drink independently, pack and unpack her book bag with verbal and minimal physical prompting, participate in classroom activities, match, trace, start to use PEC S, and sit in her seat (Department’s Brief at pp. 10-14). The Department also points out (correctly) that the parents have failed to demonstrate how any alleged FAPE deprivation could be remedied through 210 hours of SETSS (Department Brief at p. 23).[12]
The evidence demonstrates that the Department did not provide with a free appropriate public education during the 2010-2011 school year for many of the same reasons that it failed her with respect to the 2011-2012 school year. I make the same findings with respect to the procedural violations alleged in the hearing request with respect to the deprivation of their right to meaningfully participate in the development of the April 2010 IEP because the duration of the meeting was not adequate to consider ’s extensive special educational needs and to the improperly comprised CSE.
The parent testified that the April 201 meeting lasted ten to fifteen minutes. As stated in section I above, in developing the recommendations for a student’s IEP, the CSE must consider “the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations . . . .” 8 N.Y.C.R.R. § 200.4(d)(2). A CSE is explicitly required to consider any “concerns” parents have for “enhancing the education of their child” when creating an IEP. 20 U.S.C. §1414(d)(3)(A)(ii); see also 8 N.Y.C.R.R. §200.3(a)(1)(i), 8 N.Y.C.R.R. §200.3(c)(2)(i). Again (and for the same reasons), I find the parent’s testimony that the meeting lasted ten to fifteen minutes credible. Again, it is undisputed that had complex and significant , related services to address them) could have been discussed (along with the IEP goals and alleged progress) in a period of time of fifteen minutes. The testimony of the Department’s witnesses that the parents did not object to the recommendation or to the IEP goals was again not an indicia of the adequacy of parental input and participation in a CSE meeting. Given the short duration of the meeting and the complexities of ’s needs, which should have required a more time-consuming discussion, the parents were deprived of their opportunity to engage in educational planning for their daughter and to share in a meaningful way their concerns about their daughter’s education and their input about her needs. As stated in section I, and as bears repeating, a fifteen minute meeting for a child such as is not in accord with the “collaborative process” envisioned by the IDEA or by the Supreme Court in Schaffer, 546 U.S. at 51. This procedural inadequacy impeded ’s right to a free appropriate public education and “caused a deprivation of educational benefits” because her varied, involved and complex needs could not have been discussed adequately nor could there have been a meaningful and useful discussion to create and/or review goals and recommend services to address these needs; and, in fact, goals and services in important areas, particularly were not created or recommended for . In addition, this procedural inadequacy “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to because such meaningful discussions involving the parents could not have occurred within the time frame of the meeting.
The parents also correctly assert that the CSE was improperly comprised in April 2010 because a district representative did not participate. Again, in the very particular circumstances of this case, this deficiency rises to the level of impeding ’s right to a free appropriate public education. Since there did not appear to be anyone at the meeting who could describe the range of services that were available to address ’s identified special educational needs at the time (such as issues), it is reasonable to conclude that ’s ability to access needed services was impeded simply by virtue of the fact that an individual with an overview of the variety of services available to disabled children was not present at the meeting. Such a conclusion is borne out by the total lack of toileting and sensory processing goals, and services to address such goals, in the IEP.
Moreover, regardless of the procedural inadequacies, the Department did not, in fact provide with a program that was either “reasonably calculated” to enable her to obtain an educational benefit or enabled her to make meaningful progress. The program set forth in the April 2011 IEP was not “reasonably calculated” to enable to obtain an educational benefit because (as was true for the March 2011 IEP) it did not contain goals and services to address the IEP did not include any goals or services addressing these areas.
Furthermore, review of the evidence, particularly the descriptions by Ms. of ’s alleged progress and the assessments prepared by Ms. demonstrate that made only minimal, and not meaningful, progress during the 2010-2011 school year. First, the evidence establishes that staff at did not work on teaching and did not address ’s . Although witnesses were questioned with respect to when was able to use the toilet, their testimony did not establish a precise timeframe. However, the evidence did establish (through the testimony of Ms. ) that may no progress towards independence with while she attended . Ms. described one repeated action taken by school staff relating to toileting. This action did not result in any progress whatsoever for two years, yet school staff continued to take the same action. This repetition of a failing strategy indicates that there was no plan in place to teach . Furthermore, there was no evidence that the staff took any steps to address ’s needs.
did not make meaningful progress in the area of communication despite Ms. ’s diligent efforts. By the end of the 2010-2011 school year, remained unable to use in a consistent manner (Ms. was continuing to work on picture discrimination), had not increased her (even though she appears to have become more aware of the classroom environment and learned the “ ”), and had not increased her . Another telling factor in ’s lack of progress during the 2010-2011 school year was her in ’s year-end report card (Department Ex. 14 at p. 4).
As a result of the inadequacies outlined above, the Department did not provide a free appropriate public education for the 2010-20011 school year. Since the purpose of a compensatory educational services award is to remedy a denial of a free appropriate public education, such an award “should aim to place the student in the position she would have been in had the district complied with its obligations.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19 (internal citations omitted). Here is the difficulty in fashioning an award of compensatory education in this case: ’s toileting gains have brought her (in one important area) to where she would have been had she received appropriate services during the 2010-2011 school year and she has made strides at (another key area of deficit). Furthermore, providing compensatory services with respect to with the carefully crafted sensory schedule and in place at . In addition, although the parents clearly identified the compensatory relief they were seeking (one hour per day of SETSS for the 210 day 12-month school year), the parents have not explicitly explained (as the Department did correctly argue) how any alleged FAPE deprivation could be remedied through 210 hours of SETSS.
However, fashioning a remedy is not completely beyond the powers of a hearing officer. And, the parents did set forth a request that was substantiated, in part, by the record. was deprived of educational services she needed to obtain a free appropriate public education for a period of one 12-month school year (July 1, 2010 to June 30, 2011). Particular areas of deficit during this time period were communication, social skills, ADL skills and pre-academic skills. I find that 210 hours of services is reasonable (as based upon one hour per day of the 12-month school year) and an amount aimed at moving to where she should have been had she received a FAPE for the 2010-2011 school year. However, services should address her communication deficits as well as social, ADL and pre-academic skills deficits. As a result, compensatory services should consist of 105 hours of and 105 hours of SETSS. A would be able to address communication and social skills; SETSS would be able to address ADL and preacademic skills. Both services should be provided outside of the day so as not to deprive of her current instruction. SETSS should be provided at home in order for the teacher to address social and . may be provided at home or in the community.
Therefore, for all the above reasons, it is ordered that:
1. The Department of Education shall reimburse the parent for the tuition paid to the for ’s enrollment for the period from September 20, 2011 through and including June 30, 2012, in an amount not to exceed $6,500.00 within fifteen business days of receipt from the parent of proof of payment.
2. The Department of Education shall forward to the for ’s enrollment for the period from September 20, 2011 through and including June 30, 2012, an amount not to exceed $72,460.00 within fifteen business days of receipt from the School of proof of ’s attendance.
3. The parents’ request for compensatory services for the 2010-2011 school year is granted to the following extent. The Department shall provide with 105 hours of home-based SETSS and 105 hours of . Dated: May 30, 2012 Corrected Date: May 30, 2012 (Corrections Made to Exhibit Listing)
___________________________________
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 Curriculum, Undated, 4 pp. B 2011-2012 Schedule, Undated, 1 p. C Progress Report, 12/2011, 12 pp. D School Enrollment Contract, 9/9/11, 4 pp. E School Addendum, 9/9/11, 2 pp. F School List of Teachers, Therapists, Undated, 1 p. G School Affidavit, 3/28/12, 1 p. H Notice Letter, 9/1/11, 2 pp. I Miscellaneious Checks to School and Federal Tax Statement,
Misc. Dates, 12 pp. J Evaluation, 8/12/10, 2 pp. K , 8/6/10, 6 pp. L l, 1/27/09, 7 pp. M , 2/3/09, 2 pp. N District Placement Form, 3/18/09, 1 p. O Omitted P Letter from School to Department of Education Re: Subpoena,
3/15/12, 1 p. Q Omitted R IEP, 3/18/09, 17 pp.
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 2/1/12, 4 pp. 2 IEP, 3/15/11, 16 pp. 3 IEP, 4/19/10, 18 pp. 4 End of Year Summary-Student Outcomes, 6/27/11, 3 pp. 5 Letter from , 10/29/10, 1 p. 6 Summary of Results, 9/2010-10/2010, 6 pp. 7 The Non Speech Test, 10/5/10, 2 pp.
8 Letter from , 7/9/10, 1 p. 9 End of Year Summary-Student Outcomes, 6/2010, 1 p. 10 Student Strengths-Based Profile, 9/2010, 1 p. 11 Interest Inventory, 9/2010, 1 p. 12 Occupational Therapy School Function Evaluation, 9/10/09, 11 pp. 13 Literacy-Work Attitude and Behavior, 11/6/09, 1 p. 14 Brigance Diagnostic, 10/2009 and 5/2010, 33 pp. 15 2009-2011 Report Cards, 4 pp. 16 Progress Log, 2010-2011, 6 pp. 17 Withdrawn
IMPARTIAL HEARING OFFICER
I Email from Parent’s Counsel, 4/6/12, 1 p. II Department of Education Motion to Dismiss, 3/12/12, 32 pp. III Parent’s Response to Motion, 3/16/12, 5 pp.
POST HEARING SUBMISSIONS
IV Email to Counsel Re: Extension, 4/27/12, 1 p. V Email Re: Correction to Transcript, 5/7/12, 1 p. VI Department of Education Closing Statement/Memo of Law, 5/24/12, 28 pp. VII Parents’ Closing Brief, 5/24/12, 33 pp.
Footnotes
[1] A prior hearing officer had scheduled the April 24 hearing date.
[2] The Department of Education withdrew Department Exhibit 17 (trans. 480; IHO Ex. V).
[3] I do not have available to me for entry into the record any documentation submitted by the prior hearing officer in connection with this extension.
[5] Ms. read this exhibit into the record because her handwriting was, in portions of the document, difficult to decipher. This document, and others written by Ms. were admitted in evidence despite the difficulties in deciphering Ms. ’s handwriting because (1) these documents provide important insights into s deficits and (2) the difficulties with the documents were cured by Ms. reading her handwritten notations. In addition, in places in documents handwritten by Ms. s name appears to look like “ ” This is a function of Ms. s handwriting. The child referred to in Ms.
[10] I give no weight to the letter the parents allegedly wrote to school personnel at the end of the 2010-2011 school year reportedly expressing their gratitude to school personnel for working with . This letter was not offered in evidence by the Department, the contents of the letter remain unclear, and, if the parents wrote an end-of-year “thank you note” to their daughter’s teacher, such an action is reflective of the parents’ kind intentions.
[11] The parents withdrew their claims for the 2009-2010 school year (trans. 33; IHO Ex. I).
[12] Contrary to the Department’s assertions (Department Brief at p. 23), the actions of ’s parents are far different from the actions of the parents in French v. New York State Department of Education, 10-4298-cv (2nd Cir. Nov. 3, 2011), 111 L.R.P 69474.