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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 16, 2012
May 21, 2012
June 8, 2012
June 18, 2012 Actual Record Close Date: July 11, 2012 Hearing Officer: Jeanne Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2012
Attorney (via telephone) — Student
For the Board of Education: — Student
CSE Designee — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2012
For the Student:
NO APPEARANCE
For the Board of Education:, CSE Designee
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2012
Attorney — Student
Parents
Parents
Teacher — Student
For the Board of Education: — Student
CSE 8 Designee — Student
School (via telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2012
Attorney — Student
Parents
Parents
Assistant head of School (via telephone) — Student
For the Board of Education: — Student
CSE Designee — Student
INTRODUCTION
On February 13, 2012 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of . (“the student”).
BACKGROUND
The student is years old and has a classification of , the classification is not disputed. The student attends (“ ”). The last IEP, dated May 5, 2011, (District Ex. 3) recommended an Integrated co-teaching class in a community school with related services ( ).
A Final Notice of Recommendation: Annual Review or Reevaluation (District Ex. 5), dated July 5, 2011 was received by the parent. The final recommendation for the 2011-2012 school year was located at , Brooklyn, New York. In a letter dated August 24, 2012 (Parent Ex. A ) the attorneys for the Parent sent a letter to the CSE advising them that the Parents were intending to place the student in based on procedural and substantive errors in the IEP of May 5, 2011 and the failure to offer the student an appropriate placement. On February 10, 2012 the attorney’s for the students parents’ requested an impartial hearing seeking reimbursement for the 2011-2012 school year tuition at .
At the hearing the Department of Education (“DOE”) asserted that the IEP was properly developed and that the program recommendation and related services offered the student a free and appropriate public education (“FAPE”) for the 2011-2012 school year.
THE DOE’S CASE
The DOE argues that it provided the student with FAPE for the 2011-2012 school year by providing her with a substantively and procedurally valid IEP and with an appropriate program recommendation. DOE further takes the position that the parents failed to prove their case on prong 2 and 3.
The DOE called one witness to testify on its behalf (see Footnote 1, page 22 ) and submitted a number of documents into evidence.
The witness called was , School . Ms. participated in the May 20, 2011 IEP review for the student. She testified that neither she, nor any team member conducted an assessment of the student prior to the review. The Parents did not request that such a review be done. She notes that this was not a mandated three year review. She states that it is her understanding that is a special education school that primarily services children with learning disabilities. The related services at are programmatic which means that everyone receives or whether it is mandated or not. (t. 48-49)
Ms. testified that when a person has a disability, learning or otherwise, they always try to place the child in the least restrictive environment and typically that environment is a learning setting which involves general education peers. She states that the general education students serve as a model for the student with a disability. (t. 53)
Ms. testified as to the makeup of the IEP meeting and that the Parent had agreed to have the meeting without a parent member and signed a declination letter to that effect. (District Ex. 4) She testified that, in addition to the Parents, two teachers from the students school appeared via telephone. The teachers, Ms. and Ms. , spoke about how the student was progressing at specifically her , functioning and her skills. (t. 54-56) She testified that the reason for an annual review is to review the IEP and determine whether they continue to need special education services or if they need more services. In general they review the previous IEP, look at teacher reports and prior assessments. They reviewed those documents for the student as well as the latest . Ms. testified that the latest placed the student’s ability in the range, which she defined as meaning that her IQ is when compared to children in her age group. (t. 57-59)
Ms. testified that everyone at the meeting had the opportunity to participate in a meaningful way at the meeting. She stated that both she and the teacher assigned acted as the District representative. The program recommendation was for an Integrated Co-Teaching (ICT) setting with related services. There were no significant changes made to the IEP at that time. She stated that the student’s father was pleased with the progress that she made at and felt that she benefitted from a small class setting. At the meeting they considered general education with related services and Special Education Teacher Support Services but rejected it as they felt that the student would benefit from more support in the classroom. They also rejected a special class in a school, which is a small structured setting and full time special education but rejected it as too restrictive for the student. (t. 63-65)
Ms. described the ICT class as a general education setting with 60% general education students and up to 40% special education students. Typically there are two teachers, one general education and one special education. (t. 65-66) She testified that the student was functioning at or in and . They decided on ICT class setting because the student is a . They rejected the special class setting because the students are . They felt that the student could benefit from an extra adult in the classroom because of some of . She noted that the student can get and there are some and the additional adult would help especially to that she has. (t. 67-69)
On cross examination, Ms. testified that the role of a in an IEP meeting is, among other things, to review prior assessments and ask questions about the of the child. (t. 80) She testified that the IEP team developed the goals, everyone took part in the creation of the goals, especially the teachers.(t. 86)
Ms. testified that after a review of goal for language it would appear that based on the way the goal was written the student was in that area (t. 88) She also testified that the father was because the student had the prior year of her and that this concern was noted in the IEP. The year in question was one in which the student was in an ICT classroom run by the DOE. They did not develop any goals to address her because that was the prior year and based on the current reports she was doing and either at or . She testified that a lot of students have and . (t. 92-93)
Ms. testified that they rejected a small class setting in a special school because the students were then the student who is noted to have range. They did not consider putting the student in a non public setting in a small class with students functioning at a . She further stated that the student’s teachers felt an ICT setting would be . (t. 97-98)
On redirect, Ms. testified that they would not refer the student to the Central Based Support Team for a non public school placement because they do not consider her to have . (t. 106-107)
On a question from the IHO Ms. testified that the size of an ICT class is typically around students. (t. 108)
THE PARENT’S CASE
The Parent argues that the DOE has failed to provide the student with FAPE. They argue that the IEP contained both procedural and substantive flaws that invalidated it and that the CSE team was improperly constituted, and the goals generalized and inadequate. In addition the parents were not provided with a written notice of placement prior to the end of the school year. That the program offered was not reasonably calculated to provide the student with meaningful educational benefits as does. As such they seek tuition reimbursement for the 2011-2012 school year.
The first witness for the Parent is , head teacher at . Ms. testified that the head teacher evaluates the students’ needs and makes accommodations for the students based on their needs. She teaches reading, math, social studies and coteaches writing. She also evaluates student’s progress and works to help them be successful. The student was in her class starting in September 2011. Ms. describes the student having needs in her skills and . The student has of and as well as taking in . (t. 113-116)
Ms. testified that the student/teacher ratio is ( teacher and teacher). She states that the ratio is beneficial because it allows the students to have more time with teachers when needed. As to the student specifically Ms. testified that it works well for her because the student often has and a group environment allows them to her. They are better able to support her if she needs or needs to be or needs because it is a group and gives them the opportunity to work the curriculum around the students needs. (t. 116-118) She testified that each year the teachers work together to create a class that the student would be successful in. The classes are based on how the student performed and what works for a particular student. The students are also broken down in to small groups for . The groups are created based on the needs and needs of the students. (t. 119-120) The student’s current level is grade which is comparable to the others in her group. The group is very structured and is at a ratio of . Modifications of the curriculum are made for the student in that she is given worksheets that are with a lot of and a lot of support. Ms. believes that the student has to the curriculum and . (t. 122-124) The student has also to the curriculum. The teacher states that whenever the student has they have reinforcement work for her and work one on one with her. (t. 125126)
Ms. testified that the student is on the grade level for and is able to a than the other students in her group but is . She in during the school year. The group allows the student to take in with the use of . The student has with so . (t. 128-129)
The teacher testified that they also have lessons times per week for minutes in which the students are taught , to become and to to certain . The student, early in the school year, experienced which she often did not know the source of and had . It was about her . She and does not appear to be . The student has become more and in general. (t. 130-131)
The student receives and at in a group setting ( students). Ms. has with the related service providers as well as with the students other teachers. A progress report is prepared a year with input from the teachers and related service providers. (Parent’s Ex. C) (t. 132-134)
On cross examination, Ms. testified that reviews the students IEP and uses it in order to place the student in the classes. The students level is determined based on test scores and the they are actually able to . (t. 140) She testified that while the student has been doing she still has and the have been for her and are an . (t. 145)
Ms. testified that the student uses a and to help her and . The made the determination that these things would be to the student. The is not used consistently and the goal would be to phase out both tools but at this point they are helping the student to be successful. (t. 150-152)
Ms. testified that is not a general education school but that there are other opportunities outside the school to allow students to have with . (t.
152) She testified that all the students in her class have IEP’s and that they do not base their objectives and goals on the IEP but they do review them. (t. 155)
The second witness is , Assistant Head of School at . She testified that she is Assistant Head of School responsible for the overall running of the division which has approximately students. She oversees the curriculum, the day to day life of the students and faculty in the building and works with families. is a school for children with learning disabilities. The goal of the school is to help children with learning disabilities to develop their skills both in reading, writing and math as well as socially and emotionally. They also help them to develop the skills to advocate for themselves. There is no religious instruction at . To be a student at the child must be identified as learning disabled and have average to above average intelligence. (t. 178-179) Ms. stated that they design their curriculum at the school to meet the needs of their student population. They do not follow one set curriculum. (t. 180) Ms. testified that they measure the students progress in three ways: through observation; through informal assessments; and end of the school year testing. (t. 183)
Ms. testified that she is familiar with the student and has been since she entered the school in September of 2010. The students consist of a gap between the and her her learning; ; and . She states that the student definitely learns or is best supported when her are into . The student is also taught a specific skill directly and she can then take the time to . Ms. states that the student can be when and she . The information must be in to which is the nature of the way they teach at . (t. 184-186) The student is in a class with a group of students that are then her because they felt that they were a . They are still able to meet her needs academically in in groups that take place outside of the main class. (t. 188)
Ms. testified that academically the student is . She does not believe that an ICT classroom in public school would be good for the student because it is too and would be and she would not be able to get the . (t. 189-191)
On cross examination Ms. testified the students are assessed each year. These are informal assessments and are used in-house at the school. The student continues to need to have support which they gradually phase out. Over time they work on developing automatic skills. The school looks at the IEP’s but do not follow them. (t. 197-200) The school provides related services in group settings they do not provide individualized service. (t. 205)
The third witness is , Parent. The Parent testified that the student attended and grade at the School. Her teachers noticed that she was having in and told the Parents that they and consider getting her tested as the grade progressed. He testified that the grade teacher did not address the student’s issues. The student became . They had multiple meetings with her teacher who stated that the student was and also had the student tested. (Parent’s Ex. E) (t. 216) The Parent’s began pulling the student out of school times a week to take her for and special tutors. The Parent states this was especially upsetting because the School is an ICT model with co-teachers and a special education teacher. After testing they learned that while the student has a she also has . He states that based on the recommendation of the , the who did the evaluation, and others the Parent’s placed the student in . The Parent states that it was a difficult decision because they believe in public education, their is in the public school and they were very involved in the school as Parent’s. (t. 218-219)
The Parent testified that the student has a lot of and therefore needs a lot of individualized education. He states that even in a small setting she often needs to be . In addition she has some issues that require a special setting for her to learn. The student was exhibiting a lot of about going to school when she was at the School. Since the student has been at they have seen a lot of progress and . (t. 219221)
The Parent attended the 5/20/11 IEP meeting. He states that the teachers from participated by phone and were called at some point after the meeting started. The teachers talked about the student and how she had and the goals for the following year as well as her . The Parent also was asked about how the student was with her . The Parent described the student’s prior experience at the School and the at and her need for services as he understood them. The teachers from recommended that the student stay in a class setting similar to with small class sizes and integrated services. The teachers stated that they did not believe that an ICT class would be appropriate unless it was a small class size. (t. 222-225) The Parent testified that when the student was in the ICT class at the School there were to children in the class with a general education teacher, special education teacher and a paraprofessional. The student would and but was actually and . The Parent explained this at the IEP meeting in great detail. The IEP team said they would take note of what the Parent said and take it in to account. The Parent did not feel that they had done so and did not believe that there were services or responses created in response to the student’s past experience. The IEP recommendation was for an ICT placement. The Parent did not feel that it was appropriate for the student based on past experience and . (t. 225-228)
The Parent states that he received a recommended placement but did not have an opportunity to visit the school because he did not receive the recommendation until mid July. He called the school but was told he could not visit because it was summer, he looked it up on the internet and found information about class size and read parent comments. (t. 231-233)
The Parent testified that they signed a contract with in February 2011 and made a down payment for the 2011-2012 school year to hold a spot for the student. The Parent stated that if the student did not attend they would lose the deposit but that was the only way to hold a spot at the school for the student. He states that they were still open to an appropriate placement by the DOE as they believe in public education and would like their children to attend public school. (t. 236-238) The Parent believes that the student at and that it is an appropriate setting.
On cross examination the Parent testified that he would have placed the student in a public school if he felt that the IEP was appropriate and that it addressed her specific needs. He conceded that the academic management section of the IEP contained language that was offered by the teachers from . (t. 247)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).
There is a three prong test that is the legal standard applicable a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.
I find that based on the testimony adduced at the hearing and the evidence submitted that the DOE failed to provide the student with FAPE for the 2011-2012 school year based on procedural and substantive deprivations which could not be cured by the DOE after the fact. The Parents argue that the DOE members of the IEP team failed to consider the input of the Parent, teachers from and the evaluations; failed to provide goals as those included in the IEP were vague, immeasurable and not comprehensive; failed to include goals that addressed her ; and that the recommended program was not reasonably calculated to confer an educational benefit.
The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203).
The Parent argues that the DOE members of the IEP team failed to consider the input of the Parent and the teachers from . A review of the IEP and the testimony reveals that the IEP team did consider the input of the team when assessing the specific academic needs of the child as evidenced by the use of that input in such areas as Present Performance and Academic Management Needs. That consideration, however, ceased when it came to the recommended placement of Integrated Co Teaching (ITC). It is not disputed that the teachers from and the Parent were adamant that the student would be lost in large ICT class and that she requires a small structured setting with functioning students. It is further undisputed that the student had been in an ICT classroom the prior year and had great . The student had become to . When the issue was raised regarding putting the student back in to the type of setting that she had been in just the prior year Ms. testified that the father was concerned because the student had the prior year because she of her and that this concern was noted in the IEP. They did not develop any goals to address her and because that was the prior year and based on the current reports she was doing either at or . She testified that a lot of students have prior and they get over them and move on. The reasoning used to ignore the student’s and seems circular at best. It defies reason to place her back in the setting that failed her both because she is doing well in a with classes. Ms. belief that student’s will “get over” and through was in general and not based on any personal knowledge, evaluations or observations done of the student, nor was any plan in place that would address and assist with these issues.
The Parents argue that the ICT setting was a default choice as the other options available (i.e. General Education with SETSS, Special class in a community school) were not suitable for the student either because they failed to offer enough support or the student would not be placed with her cognitive peers. The Parents further argue that the option of deferral to the CBST was not considered despite the fact that Ms. had testified that they look at the individual child and look to their and . The IEP notes (Ex. 3-18) that the “most recent evaluation reported cognitive levels to be on a superior range”. The District does not dispute the cognitive level noted in the evaluation and asserts that the student’s academic levels are not so delayed as to warrant consideration of a placement in a more restrictive environment. The SRO noted in Application of a Student with a Disability, Appeal No. 10-037 that “..school districts are not required to maximize the potential of students with disabilities… Nonetheless, a school district must provide ‘an IEP that is likely to produce progress, not regression’… and affords the student with an opportunity greater than mere trivial advancement” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). The SRO further notes that “…FAPE must be available to an eligible student ‘who needs special education and related services even though the student has not failed or been retained in a course or grade, and is advancing from grade to grade.” (34 C.F.R. Section 300.101 (c) (1); 8 NYCRR 200.4 (c) (5). I find that given the record as a whole, recommending the placement of the student in an ICT classroom, particularly after she failed in such a placement the prior year, would likely produce just what the SRO and Court cautioned against, regression. Parents are not required to first subject their child to an inappropriate placement recommended by a district in order to justify unilaterally placing the child in a private program. Frank G. v. Bd. Of Educ. of Hyde Park, 459 F.3d 356, 372 (2d. Cir. 2006). “Such a ‘first bite’ at failure is not required by the IDEA” Id. Where the parents’ claims rest on the appropriateness of the program recommended in an IEP, they are “enabled…to formulate any claims they might have based on the IEP” without regard for “hypothetical services at the proposed placement,” and the district is “prevented…from relying on arguments about the services it could have provided if it had been so inclined.” R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 42
(S.D.N.Y 2011)
I find that the DOE members of the IEP team failed to consider the input of the Parent and the teachers at when considering the program recommendation. I find that the program recommendation was inappropriate and resulted in a denial of FAPE which caused a deprivation of educational benefit. In view of the foregoing I do not address the Parents remaining contentions.
I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. I find the testimony, and evidence submitted by the Parents support this finding. The Parent has the burden to prove that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. I found the testimony of Ms. and Ms. , of , and the school progress report (Parents Ex.
C) credible. The testimony supported the Parents position that the student is . The testimony supports a finding that the school has crafted an individualized program that meets the student’s and . While the program must be one that is reasonably calculated to produce educational benefit for the student it need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G., 459 F3d at 36465.
The third prong of the test for tuition funding is whether the equities favor the Parent’s position. I find that the Parents’ cooperated fully with the IEP process. The Parents made efforts to review the recommended placement. The Parents’ notified the DOE in a timely manner that they found the program recommendation inappropriate and of their intent to unilaterally place the student at if the recommendation issue could not be resolved. The DOE raises the issue that the Parents signed a contract with (Parent Ex. D) on 2/7/11 and paid a non refundable down payment of $ . The Parent testified that in order to reserve a seat for the student they were required to sign the contract and make a down payment at that time. The Parent stated that they signed the contract to reserve a seat for the student in the event there was no appropriate program recommendation by the DOE. The Parent testified that he was unaware of the option for tuition insurance when questioned by the District. I will note that it is plainly set out on the contract. The District also, in its closing, states that the payment option chosen by the Parent was to pay 60% of the tuition prior to July 1, 2011. The DOE notes that this was payable before a placement offer was even made. Also plainly noted on the contract is that an exception is made in cases where the child withdraws to attend a public school and notifies prior to September 1, tuition will be refunded less the down payment. The Parent testified that both parents are firm believers in public education and would prefer to send their children to public school and are active in the public school that their . He stated that his is a student in the very school that the student attended previously and does well. I find the Parent credible. In view of the foregoing I find the equities favor the position of the Parent.
ORDER
Therefore, it is hereby ordered that the Department of Education shall reimburse the Parents for the tuition at for the 2011-2012 school year in the amount of $45,960. Dated: July 17, 2012
___________________________
JEANNE M. KEEFE, ESQ.
Impartial Hearing Officer
JK: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 ON JUNE 8, 2012
PARENT
A Notice, 8/24/12, 3 pp. B Amended Impartial Hearing Request, 4/16/12, 6 pp. C -Mid Year School Report, 9/11-1/12, 23 pp. D Enrollment Contract, 2/7/11, 2 pp.
DEPARTMENT OF EDUCATION
1 Impartial Request, 2/10/12, 5 pp. 2 Due Process Response, 2/17/12,[6] pp. 3 IEP, 5/20/11, 19 pp. 4 Declination Letter, 4/25/11, 1 p. 5 Final Notice of Recommendation, 4/25/11 A full record has been made regarding the Districts efforts to call a Special Education Teacher as a witness at their convenience, see transcript pages 23-34, 164-165 6/8/12 hearing date. Also please see transcript pages 170-174 6/18/12 hearing date. As to that witness I made the finding that the witness was unwilling to testify on 6/8/12 and not unavailable as stated by the DOE. In addition, please see IHO Ex. II which consists of emails from the Parties requesting adjournments/additional hearing dates with the response.
Please note that some errors were identified in the transcript of 6/8/12 which have a direct bearing on this issue. The case manager has forwarded the errors on to the transcription company with the corrections. The corrections have been included for clarification purposes. They are:
P. 25 L6 “adjournment” not objection P.26 L 16 Nobody appeared for “the Parent”
P. 27 L3 was “not” acceptable
P. 28 L.3 and “he” gave several dates
Footnotes
[6] Email from Teacher, 6/8/12, 1 p. DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 18, 2012 PARENT E Evaluation, 9/9/09-9/30/09, 31 pp. POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER I Statement of Adjournments and Extensions, Undated, 1 p. II Emails from Parties Requesting Adjournments/Additional Hearing Dates, 4/4/12-6/15/12, 18 pp. III Closing Statement by District, 7/3/12, 7 pp. IV Parents’Memorandum of Law In Lieu of a Closing Statement, 7/6/12, 17 pp. FOOTNOTE #1