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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: April 30, 2012
May 24, 2012
June 1, 2012
June 4, 2012 Actual Record Close Date: June 12, 2012 Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2012
Parent Advocate (via telephone) — Student
For the Board of Education: — Student
Chairperson Designee (via telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2012
Advocate — Student
Mother — Student
For the Board of Education: — Student
Social Worker — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2012
Advocate — Student
Parents
Occupational Therapist- (via telephone) — Student
Principal- (via telephone) — Student
Teacher- (via telephone) — Student
For the Board of Education: — Student
Chairperson Designee — Student
(via telephone) — Student
(via telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2012
Advocate — Student
Mother — Student
Aunt — Student
For the Board of Education: — Student
District Representative — Student
On April 2, 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 S. The parent requested the hearing on March 29 to challenge the alleged failure of the Committee on Special Education for District 20 (the “CSE”) to provide with a free appropriate public education for the 2011-2012 school year and to seek reimbursement for tuition for her unilateral placement of at the (“ ”), a non-approved non-public school in Brooklyn, for the 2011-2012 school year.
The resolution period concluded on April 28. A pre-hearing conference was conducted on April 30. The hearing was conducted on May 24, June 1 and June 4. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
On the record on April 30, the parent requested an extension of the compliance date (trans. 12). This extension was granted, and the compliance date was extended to July 5 (IHO Ex. I [notice to parties re: factors considered and reasons for extension]). The record closed on June 12 (and the parties were so informed by the hearing officer on that date) upon the receipt by the hearing officer of the transcript of the hearing.
Background
1
is a young woman who attends . Her disability is classified, for the purpose of the IDEA, as . This classification is not in dispute. She has been diagnosed with . communicates through and is not with . The School District’s Case , a certified special education teacher employed by the Department at the CSE, testified that he was the “teacher assigned” to the CSE (trans. 50). The CSE convened on May 23, 2011 for an annual review for (Department Ex. 1). Mr. participated in this meeting (trans. 51). A school psychologist, a parent member, the parent, ’s teacher at Imagine, the Imagine principal (Ms. ), and the parent’s advocate also participated in the meeting (trans. 51-52). The CSE created an IEP recommending that attend a special class in a specialized school to be implemented as of September 7 (Department Ex. 1 at pp. 1, 2). The CSE also recommended that attend a summer program at for ’s teachers and family members sometimes call her . July and August 2011.[2] The IEP included the following related services: a full-time ; (four 45 minute individual sessions per week); (three 60 minute individual sessions per week); and (three 45 minute individual sessions and two 45 minute sessions in a group of two students per week). was recommended to address her skills therapy was recommended to address her “ (Department Ex. 1 at pp. 7-8). The CSE considered a classroom observation and reports from personnel (trans. 53).
The IEP notes that “presents with skills, sensory modulation, safety, selfcare, play skill[s], and .” has a “ ” and “ but is unable to navigate her environment safely” (Department Ex. 1 at p. 4). The IEP clearly states that experiences “balance and gait issues,” and that at the meeting, the parent “request[ed] a school that does not require much ambulation on ’s part” (Department Ex. 1 at p. 9). Mr. did not recall the parent requesting a barrier-free school for (trans. 54).
Mr. explained that the CSE recommended a health paraprofessional for because she had difficulties with (trans. 68).
also to the ground as a demands, and when ” (Department Ex. 1 at p. 6). The CSE concluded that ’s ” in a small, structured setting with refocusing, redirection, sensory integration and a “multi-modal approach to teaching” (Department Ex. 1 at p. 6). A ”) was not included in the IEP even though the IEP states that a was created.3
At the CSE meeting, ’s teacher at reported that during the 2010-2011 school year, was “progressing nicely” and and setting a table (Department Ex. 1 at p. 3). The IEP includes goals and objectives in the areas . These goals were provided by staff (trans. 65-66, 68). Mr. opined that these goals were appropriate for (trans. 5859).
Imagine personnel prepared reports prior to the CSE meeting (Department Exs. 2, 3, 4). These reports note that “is able to use some words to communicate appropriately” and describe her : ,” , and waiting (Department Ex. 2 at p. 1). required redirection to decrease these behaviors and to “use her hands and her words appropriately.” demonstrated “ as well as ,” with “ ,” which made it “extremely difficult for her to and label everyday objects, causing her to become (Department Ex. 2 at p. 2; see also Department Ex. 3). She was able to follow one and two step directions and “loves” playing with dolls (Department Ex. 2 at p. 3). The report clearly states that “requires frequent redirection in order to remain focused on activities and that “in a quiet setting, [she] is able to learn new skills and focus on the tasks at hand” (Department Ex. 2 at p. 2).
The classroom observation conducted on November 22, 2010 states that “not only looked much younger than her chronological age but also ” With respect to classroom functioning, was “unable to function without the constant supervision of an adult. ” (Department Ex. 9; see also trans. 64). During the observation, was working on .
A evaluation of was conducted in September 2009 (Department Ex. 7). The evaluator attempted to administer the WISC-IV, but “was not interested in the test materials” and scored below the (in the extremely ) on the subtests. The report states that “[i]t was not possible to determine [ ’s] FSIQ score, but it is estimated to be below 50” (Department Ex. 7 at pp. 2-3). On the Vineland-II, ’s scores were within the moderately ). At the time of the evaluation, was , (Department Ex. 7 at pp. 3-4). Her index was “elevated” , , and (Department Ex. 7 at p. 5). scored at the “ ” level on Rating Scales (Department Ex. 7 at p. 5).
, a certified special education teacher and a certified school administrator, testified that she was the assistant principal of (trans. 80). The includes classes taught by certified special education teachers. The related services of occupational therapy, are provided at the school (trans. 81-82). Students spend time at work sites every week (trans. 83). Parent training is provided in the form of monthly parent workshops (trans. 83). According to Ms. would have been able to provide with a health paraprofessional and all her related services (trans. 86, 91-92).
Ms. stated that she had reviewed ’s IEP and that ’s IEP was “very, very similar” to the IEPs of the students in the class proposed for (class Y07) (trans. 84). She opined that the staff at the would have been able to meet the goals set forth in ’s IEP and to provide her with an “appropriate education” (trans. 84). Ms. was not asked to explain the basis for these conclusions. She did state that teachers provided differentiated instruction to address the variability in students’ performance levels and assess students (trans. 86).
Ms described a typical day in the . Students arrive by bus, meet the staff and are taken to the “main building” for breakfast. The students then exit the main building and walk approximately “20 yards”[4] across a parking lot to the “annex” building, climbing up “four or five steps,” for morning classes. These classes include morning meeting, academics and . Related services are provided on a pull-out basis, and students walk to the providers’ offices (trans. 84-85, 87-89). ’s was on the first floor of the annex; would be required to climb a flight of stairs to the second floor of the annex to attend computer class, some , and each of her related services (trans. 89, 93).
In September 2011, there were two openings in the . “Most” of the five students in the class in September were fourteen and ; a twenty-one year old student joined the class later in the year (trans. 90-91). The Parent’s Case The parent testified that she first became aware that was not developing typically when (trans. 182). was evaluated by a . then received — , and the family received family counseling (trans. 182). When was two years of age, she was (trans. 184). When became eligible for pre-school services, attended a center-based program and received home-based services through the CPSE (trans. 183). When was five years of age, she was functioning at the level of a one year-old child: she was not , was (trans. 184-185). attended a New York State approved non-public school, , for kindergarten at Department of Education expense (trans. 185). remained at for four years.
The parent placed at ago because it provided a program (trans. 185-186). The parent attended the May 23, 2011 CSE meeting (trans. 186). The parent disagreed with the staffing ratio because , due to her ,” needs “very intense, close supervision and ” (trans. 186). The parent stated that the health paraprofessional was not the type of trained professional who would be able to teach (trans. 187).
At the time of the May 2011 CSE meeting, was able to use a few one-word utterances (trans. 188). She was able to walk with “a because of her ” and with her hands “in a guarded position to help her balance herself” (trans. 188). At the time of the CSE meeting, was not (trans. 188-189).
At the CSE meeting, the parent (as noted in the IEP) requested that attend a school that does not . The parent made this request because when or ,” in addition, “ ,” so if there is any , she (trans. 190). The parent stated at the meeting that needed a school at which the would be limited (trans. 210). The parent wanted a placement where was not required to “ or had (trans. 191). She informed the CSE of her concerns at the CSE meeting and stated that she “was looking for a place that [ ] wouldn’t have to ” and “that would be safe for her” (trans. 191). The District personnel at the meeting did not respond to her (trans. 191). The participating in the meeting stated that used the (trans. 211-212).
After the parent received the Final Notice of Recommendation (Department Ex. 11), she visited in the second half of June (trans. 192, 206-207). She went with her sister, Dr. (trans. 192). The parent brought a copy of ’s IEP and shared it with school personnel (trans. 193). The person who gave the parent the tour (who the parent believed was a unit coordinator and who stated that she was responsible for placement) “laughed” when the parent showed her the IEP and told the parent that she did not know why the parent had been sent to the because there was no space for at the and that was not on the roster (trans. 194, 198, 205). The parent reported that this individual also “laughed” when she saw the list of ’ related services and indicated that there was “no way” that such services could be provided at the and that the students currently enrolled in the were not receiving their mandated services (trans. 194). The parent observed that there were stairs to enter the main building and stairs to enter the annex; she was informed that the students went back and forth between the two buildings during the day, in particular when they go to the lunchroom in the main building for lunch (trans. 195, 213). The parent asked about elevators and was informed that there were no elevators in either building (trans. 197). The parent stated that one trip from the main building to the annex in the morning would have made “tired for the rest of the day” (trans. 197).
At , uses the elevator; school staff “try to work on once a day just to build up [ ’s] ” (trans. 199).
The parent observed a class where all the students were much larger than (trans. 195). is approximately four feet, seven inches tall and weighs 63 pounds (trans. 195-196). In the classroom, the instruction was “at a very high level” that was not ready for, and there was no instruction (trans. 196).
After the visit, the parent did not inform the CSE that she disagreed with the placement (trans. 216).
, a licensed occupational therapist employed by , testified that she has provided occupational therapy to during the 2011-2012 school year for three 45 minute sessions per week (trans. 101, 110). Two sessions are conducted in the occupational therapy gym and one session is provided in a kitchen area to work on food preparation skills (trans. 101). Ms. explained that experiences and which “really impeded her ability to function, especially safely, throughout her day” (trans. 103). In particular, “has overall low muscle tone as well as muscle weakness throughout her body,” “poor postural control” and “weak trunk muscles which make it difficult for her to be safe in her environment, to sit safely, to reach [for] things appropriately” and “to maneuver around her environment functionally and safely” (trans. 103). also has visual perceptual difficulties. As a result of both the gross motor deficits and visual perceptual problems, bumps into and trips over things and “needs constant close supervision” in order to be safe (trans. 104, 113). Ms. works with on developing her ability to move safely in her environment (trans. 104). is also “very, very distractible” and is unable to travel around the school building on her own (trans. 116).
Ms. is also working with on activities of daily living. For example, while is now independent with , she is “not independent with ” and needs directions broken down and (trans. 105). For safety reasons, must be supervised when in the (trans. 118).
has throughout the school day at Imagine (trans. 105). Ms. explained that such supervision was “important” for because she needs this assistance for ambulation, particularly when (trans. 105). moves between the first and second floors of the building to get to her classroom and the second and third floors to get to the OT gym. Ms. works with on climbing stairs as part of her therapy; there is an elevator in the building that uses (trans. 115). needs, and Ms. provides, support and close supervision when she is on the stairs (trans. 116).
Furthermore, her make it , such as coins, paper and crayons (trans. 103). Ms. is working with on goals involving fine motor skills (holding a crayon, picking up small items, putting on clothing), visual perceptual skills and ADL skills. has made improvements in her grasp (which results in her improved functioning), in dressing, in bathroom skills and with respect to her visual perceptual skills (trans. 107).
Ms. discusses ’s program and makes adjustments to that program on a daily basis with ’s classroom teacher. In addition, they meet weekly to discuss matters that have arisen during the past week (trans. 108). Ms. also collaborates with the physical therapist on improving ’s , , and ability to navigate the environment safely (trans. 112).
, the principal of , testified that she had masters’ degrees in pathology and educational leadership and was a licensed , teacher of the handicapped and a school building administrator (trans. 122-123). is located in a four story building with classrooms and gyms on the second and third floors; a vocational training center on the first floor; and an apartment set up on the fourth floor for instruction in daily living skills. There is a lunchroom in the basement that leads out to an outdoor recess area (trans. 124125). There is an elevator for students with physical limitations (trans. 125).
Each student in the school has an individualized educational program described in a personal program book containing goals and recording data used to assess whether goals are met (trans. 126). There are 21 students in the school ranging in age from six to eighteen years (trans. 129). All the students in the school need a “very structured environment” with a “ academic program” (trans. 127; see also Parent’s Ex. B). Students are provided with related services by therapists employed by the school (trans. 129). There are six students enrolled in ’s class ranging in age from eleven to fourteen years; since students are pulled out for related services and some academic learning, there are usually no more than two or three students in the room at a time (trans. 140, 142). Adults are present in a to the students in the room (trans. 140). The adults include a head teacher, a teacher’s assistant, instructors and related services providers.
Ms. described as a student with “gravitational insecurity”—her gait is not “well-balanced,” she uses her , is , and “ to [an]other” (trans. 130). also has visual field difficulties—she does not use her ” so she is . As a result, she can trip on (trans. 130). Staff at ensure ’s safety through . Since , she is permitted to use the (trans. 130-131). also has a (trans. 137).
Ms. also stated that experiences both and and “requires a very structured setting with reduced distractions to learn;” as a result of her “coupled with motoric ,” she needs “a lot of repetition” in her program (trans. 131). is working on . In all her learning, needs consistency, reinforcement and material presented at the proper rate (trans. 132). According to Ms. , does not need a BIP at because with “the structure that she’s given it’s very clear to her” through visual schedules and reinforcement what she is supposed to do and “what her limitations are” (trans. 132-133). receives one-to-one instruction and support throughout the school day (trans. 133). Many of her academic programs use principles; some are discrete trial training, and others are natural environment teaching (trans. 134). The DIR methodology is also used with (trans. 134).
Imagine provides with the level of related services appropriate to the one-toone “multidisciplinary approach” of the school (trans. 135). receives three 45 minute sessions per week of during the lunch period to work on plus three 45 minute sessions per week, as well as . At lunch, staff also works with on remaining at the lunch table and eating (trans. 136-137). has a very small stature for her age (trans. 137).
Imagine personnel monitor ’s progress by means of data collection and assessments (trans. 138). Ms. stated that “is and with every program” so her “ ” (trans. 138).
Ms. opined that did not need a at (trans. 145). Ms. also stated that the 60 minute sessions of physical therapy recommended in the IEP were too long for in light of her diminished stamina; as a result, the physical therapist provides therapy to during 45 minute sessions (trans. 144).
, a certified special education teacher, testified that she was working towards her Board-Certified Behavior Analyst (“BCBA”) credential (trans. 153). She is employed by Imagine and works with classroom teachers and other staff supervising, training in creating individualized curricula for each student and assessing students using ABLLS. She also collects data, evaluates programs and reviews positive behavior support plans for each student (trans. 153, 167-168). Ms. created ’s individualized plan for the 2011-2012 school year (trans. 154). ’s plan was based upon the strengths and weaknesses identified by the ABLLS and information from her teachers and related services providers (trans. 154). Ms. works with individually (trans. 159).
Ms explained that since was a teenager, Ms. wanted to address not only academics but also functional, life, in ’s plan (trans. 155; Parent’s Ex. F). Ms. also wanted to increase ’s time on task, her length of utterances and verbal imitation (because it is difficult to understand ’s speech) (trans. 156). School staff worked on the following functional and vocational skills with : delivery and messenger service (within the school), opening containers, cleaning school materials, dishes and silverware, shopping in the community, dressing and undressing, showering, and leisure skills (trans. 156 160). During shopping, was able to , remain with , keep her hands to herself and not , and not become distracted by her environment (trans. 157-158). Her teachers were able to address the skills of following directions, following through with a task, and remaining with adults to be safe (trans. 157). Imagine staff use a TEACCH approach to work with on cleaning tasks in the school’s kitchen area (trans. 158). The TEACCH methodology works with on household-type tasks because it provides her with prompting and an organization for materials and the environment that has “really assisted in her completing the task” (trans. 158-159). With respect to leisure skills, was being taught how to watch a video—she “literally started at one minute of her being able to sit and attend to a video, and that was difficult for her in the beginning” (trans. 160). By early June 2012, was up to sitting for seven minutes to watch the video (trans. 201). has made progress “in the majority of her programs” (trans. 159).
is “easily distracted by anything going on around her” and “needs a lot of support” (trans. 160). Such support is provided at through instruction, visual support, a structured environment, prompting, and modeling. According to Ms. , is able to complete tasks when she is provided with instruction (trans. 160). Ms. opined that was an appropriate educational setting for because it provided her with one-toone instruction and supervision for safety and in order for her to make progress (trans. 160-161).
Imagine personnel prepared progress reports for during the 2011-2012 school year (Parent’s Exs. E, G). These reports note that is “generally able to follow the classroom routine with minimal assistance and reminders, with the exception of behavioral tantrums” (Parent’s Ex. G at p. 1). has made progress in the area of social skills. By April 2012, she was able to greet staff and peers, make eye contact and respond to her name by turning her head and was working on turn-taking, following directions and remaining on task. was also working on vocational programs and activities of daily living. With support, visual supports, prompting, having tasks broken down, and use of reinforcement, was working on , shopping, delivering messages and housekeeping tasks (Parent’s Ex. G at p. 2). has made improvements in feeding and dressing herself (Parent’s Ex. G at p. 6). While had made improvement in her ability to , after (with adult supervision), she “displays , such as shortness of breath and decreased muscle strength” (Parent’s Ex. G at p. 9).
The parent has observed ’s progress during the 2011-2012 school year. has become more independent with ” (trans. 202). She is able to sort and match a set of six items, , learning to share and take turns (rather than grabbing at items), improving her pincer grip and improving her ability to walk independently (trans. 202-203).
Imagine provides the parent with parent training on a monthly basis. Staff members come to the home and work with the parent on carrying over skills learned at school to the home, such as (trans. 203-204).
Imagine tuition for the period from September 2011 through June 2012 is $79,500.00 (Parent’s Ex. K). The parent has paid the for the 2011-2012 school year in full (trans. 204).[5]
Dr. , a certified special education teacher and psychologist with a doctorate degree in developmental psychology and a specialization in developmental neuroscience, testified that she was ’s aunt and went with the parent to observe School (trans. 221222, 226-227). At the , a individual informed them that there were no “vacancies” and that, if were to attend the , school personnel would not be able to meet the related services mandates in her IEP (trans. 224-225, 238). Dr. visited the classroom with the parent. Dr , based upon her observation, that the proposed classroom was not appropriate for because would not be able to manage the transitions between the two buildings and “an inordinate amount of time during her day would be spent trying to calm her down a lot to transition to either going out or coming in which [school staff] commented that they did frequently because some of the services and facilities they used were in the main building” (trans. 226). Furthermore, the students in the class were “rather large” and the classroom was small and “rather crowded;” Dr. was concerned that since “ is a tiny child,” “some of the young men in the classroom were well over six feet tall and quite broad” and the classroom “wasn’t that large” (trans. 236).
Dr. opined that it was appropriate for a health paraprofessional to assist with (trans. 232-233). She also opined that a program was “fine as long as [ ] has a health para who’s close by” (trans. 235).
Dr. explained that has an because her and her ; due to ’s “ ” and “ issues,” ’s treating physicians “have not yet been willing to intervene surgically until they see how she continues to develop” (trans. 233). needs “to be watched constantly” to prevent injury (trans. 234).
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).
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 A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The school district bears the burden of demonstrating the appropriateness of the program recommended by its CSE.
A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189. 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. ’s IEP does accurately describe her present levels of achievement, her present levels of functional performance and her individual needs and does set forth annual goals and short-term objectives designed to meet her needs. However, as the parent alleged in her hearing request, the Department did not address those identified needs by failing to provide for one-to-one instruction in the recommended program and by failing to propose a placement in which ’s ambulation would be limited.
With respect to the ambulation issue, while the IDEA does not require that the child’s IEP list a particular school, the school district is required to assign the child to a school at which the child’s IEP mandates can be satisfied and the child’s educational needs met. M.H. v. New York City Department of Education, 712 F. Supp. 125, 162164 (S.D.N.Y. 2010). It is undisputed that has balance and gait issues due to her hip dysplasia and visual field difficulties, has impaired strength, and is “unable to navigate her environment safely.” It is also undisputed that the parent, at the CSE meeting (as described in the IEP), requested a school “that does not require much ambulation on ’s part.”
The Department seems to argue that since the parent did not explicitly request at the CSE meeting, or present medical evidence to the CSE demonstrating the need for, a “barrier-free” site, then the CSE was not required to place such a requirement on the IEP. There are two flaws in this argument: (1) the parent was not asking for a barrier-free site; and (2) the parent was not required to use specific “magic words” to explain her child’s needs. The parent was expressing to the CSE ’s in an accurate manner and to the best of her ability. The parent’s statement was supported by the reports describing ’s . The parent’s statement should have triggered an inquiry on the part of the CSE to determine whether needed a “barrier-free” site. If that inquiry resulted in a determination that needed a “barrier-free” site, then the IEP should have so stated. If that inquiry resulted in a determination that did not need a “barrier-free” site, then the CSE should have determined whether needed some other accommodation to enable her to navigate a school building safely.
The CSE did not appear to recommend the health paraprofessional in order to address ambulation. Mr. testified that the health paraprofessional was recommended due to ’s and . In any event, the health paraprofessional would not have been sufficient to address the ambulation difficulties would have experienced at because, while the paraprofessional could have assisted on her walks between the two buildings and climbing the stairs, those walks between the two buildings and the need for to climb those stairs still existed.
Whether or not ’s IEP should have specified a “barrier-free” site is inappropriate for . Placement at would have required to travel, at minimum, from the main building to the annex after breakfast and then make a round trip between the two buildings for lunch. In addition, would be required to daily from her first floor classroom to the second floor of the annex for all her related services sessions. She would also need to climb flights of stairs to her computer class and some of her classes. From the testimony of the Department’s witnesses about the stairs at and the testimony of the parent that there was no elevator at , it can be concluded that there was no elevator at . The credible testimony of the parent and Ms. establishes that tires easily and needs to use an elevator during the school day. The required of at (with the absence of the availability of an elevator) would , creating an unsafe situation for her and rendering her unable to .
With respect to teaching, it is undisputed that requires constant adult supervision in order to be safe and that she is highly distractible. Both these needs could be addressed by the health paraprofessional recommended by the CSE. However, the evidence establishes that learns when she is provided instruction in a quiet, one-toone setting which permits her to focus on learning and carry through and complete tasks. This type of teaching is not within the purview of a paraprofessional. While a paraprofessional would be able to attend to ’s health, safety and self-care needs, such an individual would not provide with instruction. is extremely distractible and requires constant redirection and reinforcement to participate in any learning-related activity. See Application of a Child with a Disability, Appeal No. 10-039 (district failed to offer FAPE because the recommended program did not “provide the level of individual support required to address the student’s distractible behaviors and attention needs”). also manifests significant cognitive and communication delays requiring repetition and reinforcement. She speaks in phrases of no more than three words and is functioning at the pre-academic skill level in academics and far below age level in ADL skills. The educators at Imagine, Ms. and Ms. —the individuals who best understand ’s learning—both testified that needs one-to-one instruction in order to learn and to make gains to address her .
I give little weight to Dr. s testimony that a program would be “fine” for in light of the equivocal nature of this testimony and in light of the testimony of the educators who work with on a daily basis.
The testimony that there was “no vacancy” at in June 2011 is irrelevant. The relevant time frame for availability of a placement for was September 2011. Ms. clearly testified that there were two openings available in the class proposed for in September.
As a result of the substantive inadequacies in the program created and the placement proposed 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 parent prevails with respect to the first prong of the Burlington/Carter analysis.
B. The Appropriateness of Imagine for
The parent bears the burden of proof concerning the appropriateness of Imagine 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 Imagine 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 and special educational needs are addressed. has identified needs in the areas of ambulation, , nutrition, skills, . addresses ’s needs by providing her with a small class, adult support for safety and to enable her to learn, a personalized structured program and an environment in which her health needs and deficits are addressed.
First, to address ’s safety needs, provides with one-to-one constant and close adult supervision to keep her safe, monitor her health concerns, and assist her in ambulation. The school also has an elevator. While Ms. , the , works with on climbing stairs in order to increase ’s ability with respect to this skill and to increase her , needs to (and does) use the elevator when she becomes fatigued.
With respect to ’s learning needs, Ms. created a personalized program book for which is used by staff to collect data on how is performing and progressing in her educational programs. These programs are implemented by Imagine teaching and related services providers in a setting with consistency, repetition, reinforcement, and material introduced at a pace appropriate to ’s needs. Imagine addresses ’s attentional needs by reducing distractions through the instruction and through visual schedules, prompting and reinforcement.
Imagine staff also address ’s needs to learn self-care and skills and develop vocational skills. Both her teachers and occupational therapist, Ms. work with on School personnel address ’s nutritional needs by providing additional sessions of speech and language therapy to work on her at mealtimes and by encouraging her to provides with the related services of and . The school also provides her parents with parent training and support on an individual basis through monthly home visits. Her teachers and therapists meet weekly, as well as during the school day, to collaborate and adjust ’s program to continue to meet her needs. has benefitted from all these various special education services, supports and interventions at Imagine. She is supported, particularly, in the areas of delays, is available for learning, and has learned. She has made slow yet steady progress commensurate with her abilities and need for repetition and reinforcement. She has improved in the areas of attention, remaining on (particularly her grasp), skills, following directions, sharing and .
The Department appears to contend that was not appropriate for because it provided only a 10-month, rather than a 12-month, program to for the 2011-2012 school year. This argument is unsound under the specific circumstances of this particular case because the CSE recommended a summer program for at .
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, participating in, and contributing to the CSE meeting. She had worked with EI, the CPSE and the CSE for years before enrolling at . The parent visited the proposed placement at and provided information to staff about . While there was confusion about the roster at the as of June 2011, the parent did not create the confusion. As a result, equitable considerations favor granting relief to the parent.
Therefore, for all the above reasons, it is ordered that:
The Department of Education shall reimburse the parent for the tuition paid to the Imagine Academy for Autism for ’s enrollment for the period from September 1, 2011 through and including June 30, 2012, in an amount not to exceed $79,500.00 within fifteen business days of receipt from the parent of proof of payment and proof of attendance. Dated: June 26, 2012
______________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer
JMB:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request, 3/29/12, 4 pp. B Program Description, Undated, 1 p. C Omitted D Ten-Day Notice, 6/15/11, 1 p. E Progress Report, 3/9/12, 7 pp. F Class Schedule, 11/2012, 1 p. G Annual Review, 4/16/12, 11 pp. H Attendance Record, 5/23/12, 1 p. I Affidavit of Payments, 5.23.12, 1 p. J Proof of Payment, 11/3/11, 1 p. K Enrollment Contract, 4/1/11, 3 pp.
DEPARTMENT OF EDUCATION
1 IEP, 5/23/11, 23 pp. 2 Teacher Report, 1/3/11, 3 pp. 3 Report, 1/3/11, 4 pp. 4 Report, 1/3/11, 3 pp. 5 Parent Letter, 2/17/11, 1 p. 6 Camp Letter, 1/18911, 1 p. 7 Evaluation, 9/3/09, 6 pp 8 Observation, 3/23/12, 1 p. 9 Observation and Fax Confirmation, 11/22/10, 3 pp. 10 CSE Minutes, 5/23/11, 1 p. 11 Final Notice of Recommendation, 6/15/11, 1 p.
IMPARTIAL HEARING OFFICER
I Email to Parties Re: Extension, 4/30/12, 1 p.
Footnotes
[2] attended for July and August. This placement is not in dispute in this proceeding (trans. 25-26). In addition, the parent included claims for bus transportation and payment for related services. The Department is providing bus transportation to and the cost of related services is included in the Imagine tuition (trans. 5-6). These two separate claims included in the hearing request were not litigated by the parties and are dismissed. See Application of the New York City Department of Education, Appeal No. 11-132 at p. 24. In her hearing request, the parent did not challenge the absence of a BIP (Parent’s Ex. A).
[4] Ms. estimated this distance at 10 yards during her direct testimony (trans. 85) and then on cross-examination as 20 yards (trans. 88 and 89).
[5] Subsequent to the preparation of the Imagine payment affidavit (Parent’s Ex. I), the parent paid the remainder of the tuition.