NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 26, 2012
May 9, 2012
May 18, 2012
June 15, 2012
Actual Record Closed Date: July 24, 2012
Hearing Officer: Jeanne M. Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPREARED ON MARCH 26, 2012
For the Student:
, Attorney (Via telephone)
For the Department of Education:
, DOE Attorney (Via telephone)
NAMES AND TITLES OF PERSONS WHO APPREARED ON MAY 9, 2012
For the Student:
, ESQ., Attorney
, Parent
For the Department of Education:
, ESQ., Attorney
, Special Ed Teacher (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPREARED ON MAY 18, 2012
For the Student:
, Attorney
, Parent
, Educational Consultant
, Program Director
, Occupational Therapist
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPREARED ON JUNE 15, 2012
, Attorney
, Parent
, Program Director (Via telephone)
, Head Teacher at
For the Department of Education:
, Attorney
INTRODUCTION
On February 23, 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 Max H. (“the student”).
BACKGROUND
The student is (the classification is not disputed). The student attends the ”). The last Individualized Education Program (“IEP”), dated 4/4/11 (District Ex. 1) recommended a special class in a special school with a ratio of children, teacher and paraprofessional ( ) with related services.
A Final Notice of Recommendation: Annual Review or Reevaluation (District Ex. 6), dated 6/11/11 was received by the Parent. The final notice of recommendation (FNR) for the 2011-2012 school year was School, . The Parent rejected the placement as inappropriate (Parent Ex. D, E). On February 21, 2012 attorney for the students Parent requested an impartial hearing seeking tuition reimbursement for the 2011-2012 school year tuition at Rebecca (Parents Ex. A)
At the hearing the Department of Education (“DOE”) asserted 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 him with an appropriate program recommendation and that the IEP was properly constituted with all mandated participants present and participating. DOE further takes the position that the Parents failed to prove their case on prong 2 and 3.
The DOE called two witnesses to testify on its behalf and submitted a number of documents into evidence.
The first witness to testify for the DOE was , Special Education Teacher. Ms. taught a class in the summer 2011 at and the student would have been in her class. (t. 42-44) On the first day of school she had 4 students classified with varying degrees of ages years old. The students were reading at the grade level and between and to grade in math. (t. 45-46)
Ms. testified that she uses the which she defines as a method based on a curriculum standard that is very structured and that work better in a structured environment. She states that so from beginning to end, a scheduling system and a seating arrangement. She further testified that she groups the students according to ability. She teaches a lesson then they break down as individuals with individual tasks. After that they get back together as a group in order to incorporate socialization skills. The students also have ( ) and (ST). (t. 46-48)
Ms. described a typical day from arriving in the morning, through ELA, lunch and then math in the afternoon. She stated that the students used manipulatives that were specific to the child. In addition the students had the opportunity to take . In order to promote independence they would allow the student to take a break and go get a drink of water (escorted by a para) or go to the back of the room and listen to a CD with headphones on. In addition to the related services they would do sensory activities as well. (t. 49-53) The students have gym every day and after lunch they would have 30-45 minutes in the play yard. The students had lunch with approximately eight other autistic classes. The District requires that the all teachers be with the students at lunch. In addition the classroom para is generally there as well as the related service providers (who are in and out of the lunch room). If a student became disregulated during lunch someone would take the student out of the environment. (t. 53-55)
Ms. , after a review of the students IEP, testified that she would have been able to implement his academic management needs. She states that many of those needs are standard for autistic students and are incorporated in her lesson plans. She has various sensory tools that she uses such as balls that are soft and can be manipulated as well as heavy vests. (t. 56-58) Ms. testified that she would be able to implement the students Social/Emotional Management needs as described in the IEP. She notes that the goals are similar to those of the other students in her classroom. (t. 59-60) Ms. testified that transitioning a student from a private school would be no different than any other student as they would have the same mandates and would introduce the student to the routines. (t. 61-62)
Ms. testifies that they have data portfolios for the students. The portfolios are used to track the growth of the students. The school also offered parent training, such as workshops. Information on the parent workshops is sent home in the student’s communication book. The communication book is written in every day and lets the parents know if there are any issues with the student. The parent can also write any issues regarding the student in the book. (t. 63-64)
On cross examination Ms. testified that the student was on the roster on the first day of school but did not show up. The class was full within a week or two. There were six classes in the school for the students age range. She does not know exactly why the student was placed in her class but believes it is probably because he is suitably grouped with the other kids in the class. (t. 71-74) She also testified that she is not aware of a situation where a student was placed in a class, found to be too high functioning for that class and then put in class. (t. 80)
Ms. testified that half the kids in the class were . Of the two were and would have conversations. The other student had increments of . The devices. (t. 83-84) She testified that the students would do task related work which they would first review as a group and then they would try to do it on their own. They worked in 45 minute teaching blocks with a after each teaching block. (t. 85-86)
Ms. testified that there is a therapy room but she never being provided in that room. The students in her class did not have a problem with meeting their Therapy (“ ”) and Therapy ( mandates. (t. 88-90) She is unaware of how many students are in the school but states there are classes for students with . She does not know if there are any general education students in the school. (t. 94) Ms. testified that she has observed fights in the halls of the school but does not believe they occur on a daily basis. She believes verbal aggression in the hall probably does occur on a daily basis. No student has been in her class, though some were . (t. 97-99)
The second witness called by the DOE is , School Ms. testified that she is familiar with the student as she participated in his IEP meetings both in 2009 and 2011. (t. 114) She stated that at the April 4, 2011 meeting everyone had an opportunity to participate. (t. 115) At the IEP meeting they discussed his reading and math skills. In addition they discussed his low cognitive scores and that the who did the testing (District Ex. 4) indicated that the student’s and as well as distractibility may have impacted on those scores causing an underestimate of his actual functioning. (t. 116-118). She stated that this discussion involved the Parent and that she agreed with that perspective. There is a reference to the discussion in the minutes (District Ex. 2) (t. 119) Ms noted that the found that the student was able to read at . (t. 120)
In the course of the meeting his teacher reported that the student is overall, likes things and to . The student wants to know what the rules are and wants to follow them. The student may if he does not know what to . The is manifested by . (t. 120-121)
The team recommended a special class in a specialized school that is a 12 month school year with a student teacher ration of The special class was recommended because as a student with he has on his chronological age. The student requires . (t.
122) After a review of the mandates in the previous years IEP’s it was agreed that those mandates continued to be appropriate and were left unchanged. The student was recommended for a 12 month school because he needs consistency and stability and two months off in the summer would very likely lead to Ms. testified that goals were created using the Rebecca Interdisciplinary Report (DOE Ex. 5), discussion and suggestions by the Parent. No disagreements with the goals were voiced at the time of the meeting. (t. 124-126) Other programs were considered and rejected such as . Those programs were ruled out as too large, the student would be overwhelmed in classes of those sizes as he needs a smaller student teacher ratio. The smaller class available in the DOE is and Ms. believes that a full discussion took place as to why the DOE was recommending that class for the student. The Parent voiced concern about the functional grouping of the class and voiced her previous experiences observing such programs and that she felt the other students were lower functioning then the student. The Parent and teacher from were concerned about having a class with appropriate functional levels. Ms. testified that they discussed the Parents concerns and stated that they agreed with her perspective and advised the Parent of her due process rights. (t. 127-129)
Ms. testified that the teacher and social worker both participated in the IEP meeting. She stated that there was discussion at the end of the meeting about parent training. Ms. advised the Parent that parent training within the 6:1:1 class is programmatic, meaning that it is simply a part of the program and she encouraged the Parent to participate. (t. 129-130) She further testified that they discussed the students sensory needs and included those needs in the IEP. Ms. believed that a classroom would provide sufficient support for the student to receive an educational benefit (t. 131-
133) She does not believe that the is a good placement for the student because she does not believe it is well structured and it is not a highly academic setting (t. 135-136) On the IEP under grade it notes “ungraded”. Ms. states that this reflects the fact that is an ungraded school. She notes that children are generally grouped according to how old they are and different schools have different approaches to grades but that it isn’t particularly material as long as students are grouped functionally according to age and ability. (t. 136-138)
On cross examination Ms. testified other then the evaluation done by Dr. (DOE Ex. 4) no other evaluations were done in order to get a more accurate picture of the students cognitive functioning. In addition, they did not review any evaluations done by the providers. Ms. stated that they relied on the Interdisciplinary Report (DOE Ex.
5) to determine how the student was doing day to day. In order to determine how the student was functioning they relied on discussion at the meeting, the psychological in terms of academics and academic test scores. (t. 142-144)
Ms. testified that the classroom ratio the student had been in the prior year was and that they did not consider any program with a more intensive staffing ratio then She agreed that there are New York State funded schools with a more intensive staffing ratio then but was not sure if the for students with had such programs. (t. 146-147) She testified that she believes that all students should be grouped functionally and that classes can vary greatly in terms of functioning from one to another. (t. 149-150) Ms. states that the May 2011 IEP was done in the old format and not under the new format for IEP’s. She describes the new IEP as allowing a section in each in terms of academic, social and physical for the parent’s perspective and to reflect the parents concerns. (t. 150-152)
On redirect Ms. testified that the is one that allows the student to be educated in a setting which gives the greatest access to the general education environment. She states that the provides the student with sufficient and adequate support to function, but with the potential for interaction with non-disabled peers. (t. 159) As to the use of the old IEP format she testified that they did not have access to the new format until July, 2011. She states that the parents concerns are listed in the minutes (DOE Ex. 2) but are also incorporated in the body of the IEP. (t. 160)
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 failed to provide an appropriate placement recommendation. That the program offered was not reasonably calculated to provide the student with meaningful educational benefit.
The first witness for the Parent was , School. The witness testified that she is currently in the process of getting her DIR floor time certificate. DIR stands for Developmental Independent Differences Based Model. In DIR you work with the child, meeting their developmental needs and taking in to account their individual differences while building a relationship at the same time in order to give the best treatment to the child. (t. 177) She worked with the student as his OT from 11/09 through 12/11, and still sees him for dyad counseling session. Dyad counseling session is when Ms. sees the student with his . She has been working in this dyad since 11/09. The purpose of the dyad is to incorporate his with a peer he has known for a very long time. This regulates the student on a sensory as well as his developmental needs. The students current OT is and he receives OT one time individually and two times in a group as well as groups that she leads in the classroom during the week. (t. 177-180)
Ms. describes the student as being very seeking who loves to be moving, jumping, and bouncing in order to get the input he needs. This input helps to regulate him. Movement is important to the student, i.e. going out in to the community or on trips. The student does not benefit from tangible items or toys as he does not really play with them. When the student he will use a flipper. The flipper is not any one particular thing; it is an item he will . It gives him input in to his system, but it is also very and he needs to be redirected. The student and . Ms. describes (as relates to the student) as being in addition to the five senses. She states that there is . The . When you move your head it gives you an understanding of where your body is in space and when you are on a planes and you get input in to your . She states that this is beneficial for the student as he . If you give him this kind of he is less likely to seek input (i.e. use of flipper). The propriceptive sense is a regulating sense and tends to calm and relax. It is feedback from your body, such as when you pull something it gives input in to your muscles and joints and tells you where you are in time and space. (t. 180-182) The witness as not getting the input that you need and states it is different for every child. In the case of the student when he
Ms. describes the individual sessions that the student has as an opportunity to use the and also to work on his core deficits which are , , , and . There are two . In addition there is a swing in the classroom. The and it and . The student also works on which are hard for him as he tires easily. They also do scavenger hunts and visualspatial activities which help him to take in the big picture. When the student being supported at the levels of shared attention, co-regulation and interaction. I n addition there is group which happens two times per week and this is a movement group. Also there is a visual-spatial group which is a push in which works on handwriting. (t. 184-
187) There are regular meetings with the classroom staff to train them on how to address the students sensory needs. The student gets throughout the day and can go to the sensory gym when he needs input. The student does not go unless he really needs to. You can see that he needs to go with the increase in movement and the flipping. The flipping and movement can impair his input is not given as he gets very distracted. It takes a lot of redirecting to get him put down the flipper. The and it . It is recommended that the student take a for at least 10 minutes per hour. One type of movement is not enough for the student because his . He needs
On cross-examination Ms. testified that the movement group has 4 to 5 children in it and the visual-spatial is a push in and is for the whole class. Some of the goals from the IEP are being implemented. (t. 203-204) She testified that a up takes place in the hallway. (t. 209-210)
On re-direct she testified that the goals in the IEP were from the progress report. The movement group takes place in the hallways because it is important to do movement and get in a naturalistic environment. (t. 210-211)
The second witness called was , Parent. Ms. described the student as constantly seeking sensory input, always in motion with the flipper in hand. He student will use anything near him to She states that he is . Any break in the norm is very , he likes to know the . He is . (t. 221)
Ms. attended the April 2011 IEP meeting and it lasted about an hour. There was discussion around the report (District Ex. 4) which she . The report said that the students was and that anyone who knows the student would know that is not true. The group was in agreement that the testing somehow did not pick up on the student’s true functioning level and agreed that the student is very bright. (t. 222-224) The recommendation at the meeting was for a program. The Parent did not agree with it and expressed that to the team and there was a long discussion about it. She testified that she has seen many programs and understands them. She stated that based on her experience she did not believe it appropriate because the profile of the children is much lower than the student and therefore would not have appropriate peers. And because they are lower functioning they would need more attention from the teachers and staff and as a result the student would get less and the student needs a tremendous amount of teacher intervention and direction. The result would be that the student would suffer. The Parent states that in prior years the student had been referred to the CBST and she raised that at the meeting and there was no response to that. There was discussion about the level of the student’s sensory needs, his need to be in motion and flipping and the things he does in order to regulate himself. The district did not disagree about the . There was no discussion about the student’s vocational needs (t. 225-228)
The Parent received a notice of deferred placement and responded to it (Parent Ex. B). It was her understanding that they were deferring placement until the next full year so he could stay in his current school for the summer. The Parent agreed to defer and noted at the bottom that she would visit any recommended placement but had concerns about would not provide sufficient support. (t. 228-229) The Parent received an offer of placement for . She visited the school in June, 2011 with the student’s classroom teacher, . They toured the school with Mr. the . They visited in the morning for approximately one and a half hours. They saw the physical environment and some classrooms as well as . While touring the school a child came bursting out of a classroom and had a meltdown in the hallway. The Parent found it very distressing and it was some time before a staff member came and took the child away. It was her belief, as well as Mr. , that the student would have “freaked” if he witnessed it. Mr. explained that there are classes with . The Parent was concerned about of the student. (t. 230-234)
While at the school the Parent observed a class that was the closest comparable to the class that the student would be placed in and that most, based on her observation, were not verbal. She pointed this out to Mr. and told him that the student is and . He told her that the prior year they had a group of and the principal formed an so they would be grouped with appropriate peers but that he could not promise that would happen again. The Parent did not think that was appropriate because it would be the same number of staff with more children and would be inadequate for the student. (t. 235-236) While at the school she saw the therapy room and found it very small for a big school, all therapies were provided there and there was a small area where they had a swing. She mentioned it was crowded and Mr. told her that was because they had to put all the therapists in that room. She asked about curriculum and was told that the school does not have any one approach; it was up to the individual teacher to decide what method they want to use. She was concerned because without knowing the method she could not decide if it would be good for the student. There was a limited discussion on social skills which would be mostly dealt with in counseling. She had concerns with this approach as she believes that the student needs to work on it more than one or two sessions per week. There was discussion about mandates ( ) and was told by Mr. that not all children were receiving all their mandated services and that the gap was more in the was unable to assure her that all children would get their services. (t. 237-240)
Ms. wrote a letter to the CSE (Parents Ex. E) in which she set forth her concerns after her visit to the recommended placement. She did not receive a response. She followed up with a letter in August to the CSE (Parents Ex. F) to which she received no response. The student remained at for the 2011-2012 school year and she is happy with how he has done and he has made a lot of progress. She states that if there was an appropriate program in public school she would send the student. She notes that her younger son attends public school. It is her belief that has a and that the opinion that it does not is out of date. The student is making progress academically. In addition is very supportive of the family. (t. 241-247) The tuition at has been paid in full (t. 251)
On cross-examination Ms. testified that she has been to IEP meetings every year since the student was in pre-school. She disagrees with the IEP stating that the students cognitive ability is very low as she does not believe the testing was reflective of his abilities (t. 252-256) The student has never been in public school (t. 259) She states that as to the letter sent June 20, 2011 (Parent Ex. D) she was sending the student for the summer program and as to the rest it would depend on what she saw when she visited the recommended program. When she visited the program she was told the ages of the students was 11 or 12, that at least half were non verbal and that there was a range of academic skills. (t. 263-265)
Ms. testified that she signed a contract with on 6/22/12 (Parent Ex. C) and made a $10,000 deposit, a portion of which was non-refundable. (t. 266-267) She did not ask for a vocational assessment for the student at the IEP meeting. (t. 268)
On re-direct the Parent testified that the non-refundable portion of the down payment was $2,500. (District Ex. 11) (t. 269)
The third witness to testify was , Program Director and . Ms. describes Rebecca as a school for children ages 4 to 21 and . The majority of students are on the autism spectrum. The methodology used at is DIR which stands for Developmental, Individual Difference, and Relationship. She states that they look at each student and then individualize a plan for them that address those three areas and wherever holes in development are. The school interfaces the DIR method with academics to address a child’s difficulties in learning. (t. 280-282) The staff is regularly trained in the DIR method. (t. 285) The student started at Rebecca in September 2006 and Ms. sees him regularly throughout the day informally in the building and more formally once a week. She was . She met with the team that works with the student in May 2011 and they discussed his needs and what the make-up of the class needed to be if he was to return to Rebecca the following school year. The class consisted of seven students (all boys) and four staff (head teacher and three teaching assistants). Of the students five were highly verbal, one emerging verbal and one not verbal but used assistive technology to effectively communicate. The student had been with the majority of year and they felt it was a (t. 286-288)
Ms. testified that the student is but can also use depending on his level of regulation. If he and . He is with abstraction. She describes him as incredibly sensory seeking and that he is a “flipper”. Whatever is in . She states that he uses it to defines in the DIR model as the ability to initiate conversation and continue it. This is something that they work on with the student. He is able to engage in conversation for longer periods with adults but less so with his peers. The , his conversation throughout the day and they have seen improvement in his communication. (t. 291-293) Ms. testified about the subjects he is working on and the progress that has been made. The school bases their reading curriculum on balanced literacy and reader’s theatre. She notes that they have done a lot of training on which bases a lot of their work on comprehension with which the children in the school struggle. As to math they use the Touch Math strategy as well as Growing With Math and Every Day Math in the students class. (t. 294-298) She testifies that he has made progress in his academic subjects and that they measure progress based on observation. There is a time every week that the teacher will observe the student and use various methods to gauge progress. (t. 299-300) The student receives and the purpose is to help him understand and identify his emotions and deal with them. She states that they address his issues with anxiety every day and states that they have made progress. They have seen a decrease in his need to use the flipper. They use the Alert program which is a program where you want the child to understand his sensory state and be able to address the needs rather than wait for an adult to do so. (t. 301-304) Ms. does not believe that the TEACCH method would work for the student because based on her understanding the TEACCH method changes the environment and the child will be independent and be able to do a task, finish the task, put the task away and move on to the next task. She states that the student is not independent, and though they are working on independence, he would become selfabsorbed and probably move away from the activity and flip because he would not know what to do. (t. 306) She does not believe that the students are in the range as he is able to read, answer questions, write sentences and understand math. (t. 309-310) Ms. believes that he needs to be with so he can use his language throughout the day and be able to interact with in a back and forth flow. The Parent has paid the full tuition for the 2011-2012 school year. (t. 310)
On cross-examination Ms. testified that there are 115 students in with 14 classrooms and all students have been classified by the DOE. She states that she goes in to all classrooms approximately one time per week and she observes the student when she is in his classroom, it is not an individual observation. (t. 313-314) She testified that there are currently 9 students in the class and that since July 2011 the head teacher has changed three times. She testified as to the group levels in math, writing and reading as of July 2011 and as of the date of the hearing. She also testified that there has been a change of speech and language therapist and OT therapist since July 2011. (t. 317-321) Ms. testified as to the frequency of OT and ST as well as the students academic levels in reading, writing and math. (t. 322-325). She testified as to the students sensory breaks and testified that they are not unlimited. (t. 325-328)
On re-direct the witness testified that the Parent is able to get a partial refund to the deposit made through September 8, 2011 even if the student starts in July because the DOE has two opportunities to offer an appropriate placement to 12 month students. (t. 339-340)
The fourth witness for the Parent was he went through six weeks of training in DIR and he has ongoing training on a weekly basis. He describes the student as very . (t. 343-344) He describes a typical day as the children come in, do morning work or have a snack, have a morning meeting in which they discuss what they will do for the day. They then generally split in to reading and movement groups. Each group has four students. The reading group reads and works on comprehension for 30 minutes. Mr. states that he has seen improvement in the student in the short time that he has been working at the school. (t. 344-348) After that they have floor time which is described as a period in which they try to build a relationship with the child and follow the student’s lead, talk about what the student wants to or read a book that he is interested in. (t. 349-350) The class also receives math instruction on a 2 to 1 ratio for 30 minutes, goes on a community walk for 1 hour once per week, has science and cooking as well as gym and music. They also work on handwriting two times a week. (t. 351-356)
Mr. testified that when the student becomes he will bounce on the ball or use the trampoline in the hallway. He has an in which he takes a once an hour for ten minutes. When the student he . He can if there is a . (t. 357-358) The witness testified that he has worked in public school with children and that they and . He feels that having the student in a program where there were students in the building could be problematic for the student. If a
On cross-examination the witness testified that he has worked in a community school for DOE not in a special school and has not worked in a classroom with a ratio. He does not have any students and does not know the classifications of other students in the school. (t. 363) He states that the students sign up for use of the classroom swing in the morning so everyone gets a turn. He testified that there is no maximum amount of time the student can use the trampoline or bouncy ball, that he uses it when needed. The student was anxious when Mr. started in January but after five months is now used to him. (t. 364-366)
On re-direct he testified that the student uses the not at other times. (t. 367)
FINDINS 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 the DOE provided the student with FAPE for the 2011-2012 school year. The Parent argues that the IEP failed to provide FAPE on a number of procedural and substantive issues. The Parent argues that the District failed to conduct adequate assessments of the students education needs, failed to provide for parent , failed to adequately address the students sensory needs as well as the failure to conduct a vocational assessment of the student. In addition, the Parent argues that the recommended program was inappropriate and unable to meet the needs of the student.
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 testimony elicited at the hearing regarding the IEP meeting reveals that there was a great deal of discussion about the student’s sensory needs and the Pychoeducational report (District Ex. 4). The consensus of the IEP team was that, based on the results of another standardized test that the student had taken and the reports of the Parent and teachers from Rebecca, the report was not an accurate reflection of the student’s abilities. In fact the report itself notes that “…Given his , self-regulation, decreased ability to focus for extended periods of time, and impulsive approach to tasks, his overall potential may be slightly greater than currently demonstrated, and the results should be interpreted with caution.” The consensus of the IEP team is reflected in the IEP under Academic Performance and Learning Characteristics, Present Performance. As to the sensory needs of the student, those are reflected in the IEP under Performance and under Needs which note his need for sensory breaks and independent movement throughout the day. Ms. testified that the goals were created using the Interdisciplinary Report (DOE Ex. 5) The minutes of the IEP meeting (DOE Ex. 2) note that goals were reviewed with the Parent and she was asked if she had anything to add and some changes were made based on her responses. The teacher from Rebecca also was asked about academic management needs and goals and the minutes indicate that the teacher suggested additional management needs and goals and some modifications made. Ms. testified that no disagreements were raised regarding the goals at the time of the meeting. As to the parent training the minutes indicate that parent training was discussed. Ms. testified that the Parent was advised that within a class Parent training is programmatic, meaning that it is simply a part of the program. There was also testimony from Ms. , teacher at the proposed placement, that the school offered parent training and that information on the training is sent home in the student’s communication book. Several programs were considered and rejected as too large and the IEP team settled on a and Ms. testified that a full discussion took place as to why the DOE was recommending that program. The Parent voiced concerns about the functional grouping of the class and voiced her previous experiences observing such programs. The Parents concerns were discussed. There was no testimony from the Parent that rebutted the conduct of the IEP meeting as testified to by Ms. . As to the vocational assessment there was no evidence or testimony regarding such assessment being conducted. However I do not find that failure to conduct a vocational assessment in this case rises to the level of a deprivation of FAPE.
The program recommended by the District was appropriate and offered the student a FAPE. I find Ms. credible when she testified as to the program offered, that the student was suitably grouped with the other students in the class, that she would have been able to implement the academic management needs and social/emotional management needs as set forth in the IEP. She testified that the goals were similar to other students in the classroom and that the students in her class received their mandated services. The Parent was opposed to the recommendation at the IEP meeting based on her past experiences. The Parent visited the school and testified that she viewed the class which would be the closest comparable to the class the student would attend and based on her observation most were not verbal. There was conversation with Mr. the school who told her that last year they had put the higher functioning students in to an but he could not guarantee that would happen again. In addition, the Parent witnessed a student have a melt down in the hallway and felt that such outbursts would adversely effect the student if he was to witness it. The Parent also felt that the room in which the therapy was given was small and cramped. While I find that the Parent’s concerns are consistent with a conscientious parent wanting the best possible education for their child, it does not make the recommendation by the District inappropriate. The SRO noted in Application of the New York City Dept. of Edu., Appeal No. 11-112 that the statute assures an appropriate education not the best education possible which may be considered optimum by the student’s parents. In addition, the SRO also noted that while the IDEA and State regulations afford the parents have the opportunity to participate in the development of the IEP “…they do not permit parents to direct through veto a districts implementation of the IEP by, for instance personally viewing and approving the classroom or classmates…”
Based on the foregoing I find that the DOE provided the student with FAPE for the 2011-2012 school year. However, though the DOE has prevailed on Prong 1 I will make address Prong 2 and Prong 3.
I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. 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.
While the DOE argues that the educational program at Rebecca has not been reasonably calculated to confer an educational benefit on the student I find that based on the testimony and evidence submitted by the Parent the program does confer an education benefit to the student. The testimony, by the staff at , and evidence submitted supports a finding that the program is designed to meet the needs of the student. In fact, Ms. testified that they relied on the progress reports and the teacher recommendations and input in fashioning an IEP which afforded the student FAPE.
The third prong of the test for tuition funding is whether the equities favor the Parent’s position. I find that the Parent cooperated fully with the IEP process and with following through on the recommended placement. The record supports the finding that the Parent cooperated with the DOE and that she was open to the possibility of a public school placement and testified that her younger son attends public school. It is not diminished by her objections to the recommended class of and the fact that she voiced and put in writing her objections. The Parent still went to view the recommended program and I do not find her perspective and objections to the program unreasonable. But as I found while the Parents concerns about the recommended program were consistent with a conscientious parent wanting the best possible education for their child, this does not make the Districts recommended program and/or placement inappropriate. Further, the Parents cooperation is not diminished by her signing a contract with in June, 2011 and making a down payment in order to keep a seat for the student in the event that an appropriate recommendation was not made by the DOE. In view of the foregoing I find the equities favor the position of the Parent.
ORDER
Therefore, it is hereby ordered that the Parents Due Process Complaint is dismissed. Dated: August 2, 2012
JEANNE KEEFE, ESQ.
Impartial Hearing Officer
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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 MAY 9, 2012
| 1 | IEP, dated 4/4/11, 17 pages District |
| 2 | Minutes of Meeting, dated 4/4/11, 2 pages District |
| 3 | Classroom Observation, dated 1/18/11, 2 pages District |
| 4 | Report, dated 11/18/10, 5 pages District |
| 5 | Interdisciplinary Report of Progress, dated 12/2010, 16 pages District |
| 6 | FNR, dated 6/11/12, 1 page District |
| 7 | DOE Subpoena to the , dated 4/6/12, 3 pages District |
| 8 | DOE Objections to Parents Subpoenas, dated 4/24/12, 2 pages District |
| 9 | Due Process Response, dated 2/28/12, 3 pages District |
| 10 | Affidavit, dated 4/26/12, 2 pages District |
| 11 | Addendum to Contract, dated 6/22/11, 2 pages District |
| A | Impartial Hearing Request, dated 2/21/12, 3 pages Parent |
| B | Response to Notice of Recommended Deferred Placement Parent dated 5/31/11, 1 page |
| C | Enrollment Contract, dated 6/23/11, 4 pages Parent |
| D | Letter from Parent to with Fax Confirmation Parent dated 6/20/11, 2 pages |
| E | Letter from Parent to with Fax Confirmation Parent dated 7/11/11, 3 pages |
| F | Letter from Parent to with Fax Confirmation Parent dated 8/26/11, 3 pages |
| G | Email correspondence from , Re: Subpoena Parent Objections, dated 4/5/12, 2 pages |
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 18, 2012
| H | Attendance Grid, dated 7/2011, 1 page Parent |
| I | District 75 Placement Office Referral Form, dated 4/4/11, 1 page Parent |
| J | Email from , dated 6/13/11, 1 page Parent |
| K | Interdisciplinary Report of Progress Update, dated 12/2011, 14 pages Parent |
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page
II. Closing Statement and Memorandum of Law On Behalf of
And His Parent, dated 7/18/12, 21 pages
III. Closing Brief and Memorandum of Law For the Department of Education, dated 7/18/12, 17 pages