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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: May 10, 2012
Actual Record Closed Date: May 18, 2012
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AMY 10, 2012
Parents
Aunt — Student
Teacher (Via telephone) — Student
Lindamood-Bell (Via telephone) — Student
District Representative — DOE
Special Ed Teacher (Via telephone) — DOE
The parent requested an impartial hearing on April 2, 2012. I was appointed on April 12, 2012. The hearing date was scheduled and occurred on May 10, 2012. The district was represented by and the parent represented herself.
The parent in her request, asks for reimbursement of the student's summer program at for the summer 2010 year. The parent at the IESP meeting dated June 21, 2010 requested a twelve month program. (HO 1)
The student at the time in question was a 12 year old attending a general education fifth grade class at . He is classified . The IESP in question is dated June 21, 2010.
An IESP was created because this student was parentally placed at the parents' expense in a parochial school. (T. 31) A district in an IESP can only offer the related service of Special Education Teacher Support Services (SETSS) which is the most restrictive placement. (T. 32) At the IESP meeting, Mr. Special Education Teacher assigned to CSE 4, testified that the following documents were reviewed: a detailed teacher's report, the report card from , a related service report from the therapist, a brief paragraph from the special education teacher support services provider, the Terra Nova score and the student's performance on the ELA and math test. (T. 33)
Mr. stated that the indicated in her report that the student presents with overall language deficits in terms of auditory processing, phonological awareness, and word retrieval. Additionally recalling information, spelling, and processing new vocabulary. (T. 34)
Mr. testified that the student's teacher stated that the student . He did struggle with reading comprehension tasks, does not seem to retain enough of what he has been learning. In terms of math, that two-step operations he . He does have some basic knowledge of regrouping concepts, . And at times he had evidence of . (T. 35) On the testing, Mr. stated the student scored in the average range in some areas, scored below average in others. Areas that he were overall reading, reading composite, math, total score. He did in vocabulary, language, language mechanics, math computation. On the ELA testing, the student scored almost at a level . On the math very close to a level . (T. 39) Level means a student is performing basically . (T. 40)
Mr. testified that the equitable services were the special education teacher support services of seven periods per week, direct instruction in a separate location, as well as the related service of therapy, two sessions a week of 30 minutes and testing accommodations as well. (T. 43) A twelve month program was not recommended because students with severe multiple disabilities who are on home or hospital instruction, students who are placed in small classes and who are need a high degree of individualized instruction. (T. 41)
The IESP indicates that the student was reading and math was calculated on a level. Since the parent has decided to send her son to a private school, she did not request a program for the school year. The district recommended only related services, speech and language twice a week for 30 minutes in a group of and SETTS seven periods per week in a group of in a separate location. (Exh. 5)
A SETTS teacher report dated June 20, 2010 indicates that the student has "poor retention of phonetic awareness" and there was no use of the FM unit. (Exh. 12)
The student's report card from indicated the following grades:
Religion
English Language Arts
Math
Science
Social Studies
The report card indicates that the student was promoted to the . (Exh. 6)
A dated June 2008 indicate that the student has "normal intelligence" and needs a small, highly structured class, intensive individual instruction, additional help and testing modification. (Exh. H)
The Parent testified that every weekend and every school day she would work for hours trying to keep him up to standard at . (T. 53)
During school vacations, the student would fall behind without the constant instruction and the rigor of being in school five days a week. The parent who is an educator would try to make up and compensate for him being out of school, but it was very hard, and his teachers and his SETSS providers still noted that he fell behind anyway. During the summer of 2009 the Department of Ed provided him with 12-month services that included SETSS during the summer and during the summer, because he's a child who has been shown to regress without periods of constant instruction, and he does need intensive instruction in order to stay to stay up to par. (T. 54) The Parent stated she placed him in because the previous school year it kept the student from completely behind. (T. 57)
The student's teacher at , Ms. testified that she teaches a general education class of 21 or 22 students. (T. 78) There are no modification to the fifth grade curriculum. (T. 80, 81) Ms. stated that the student lags considerably behind his classmates despite his efforts, he usually didn't seem to grasp the material, especially if it would call for skills beyond memorize and repeat. He presented himself as a concrete thinker who lacked the ability to exhibit any level of critical thinking. (T. 73) Ms. stated that he had very poor decoding skills, very weak in . He was with following directions of one, two or more steps. (T. 75) The student's regression always seemed to be the other students. (T. 75) His deficits seemed far beyond that of his classmates and other students. (T. 77)
DISCUSSION
Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, . . . who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education" (8 NYCRR 200.6[k][1], [k][1][v]; see Application of the Bd. of Educ., Appeal No. 11-058; Application of a Student with a Disability, Appeal No. 09-088; Application of a Student with a Disability, Appeal No. 09-084; Application of the Bd. of Educ., Appeal No. 09-047; Application of a Student with a Disability, Appeal No. 08078; Application of a Child with a Disability, Appeal No. 07-089; Application of a Child with a Disability, Appeal No. 07-082; Application of a Child with a Disability, Appeal No. 07-073; Application of a Child with a Disability, Appeal No. 07-039; Application of the Bd. of Educ., Appeal No. 04-102). State regulation defines substantial regression as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]; see 34 CFR 300.106.
Districts are required by the Individuals with Disabilities Education Act (IDEA) to participate in a consultation process to develop a services plan for making special education services available to students who are enrolled privately by their parents in nonpublic schools, no such students are individually entitled under the IDEA to receive some or all of the special education and related services from the district that they would receive if enrolled in a publicly funded program designed by the district (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]; Application of the Dep't of Educ., Appeal No. 11130; Application of the Bd. of Educ., Appeal No. 03-059). If free appropriate public education (FAPE) is at issue and the student has been unilaterally placed by his or her parents in a nonpublic school, the student is not precluded from equitable participation in the special education services under the proportionate share provisions. However, when seeking tuition reimbursement, parents must nevertheless show that the student has been provided services that are specially designed to address the student's unique needs supported by such services as are necessary to permit the student to benefit from instruction, regardless of whether the services were obtained privately at the parents' expense or from the district though the proportionate share provisions.
In the present case, the parent has chosen to send her son to a parochial school in a general education class. A dated June 2008 indicate that the student has "normal intelligence" and needs a small, highly structured class, intensive individual instruction, additional help and testing modification. (Exh. H) According to the testimony of the teacher, despite seven periods a week of SETTS, the student struggles with his subjects. The Parent testified that she spends many hours per week tutoring her son.
The parent requests reimbursement for the summer program at Lindamood-Bell for five days a week for four hours per day, one to one. The parent is asking that the district pay for the most restrictive setting in a private school during the summer to support the student in a general education program during the school year. The regulation specifies that the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months [emphasis added] duration in order to prevent substantial regression as determined by the committee on special education" (8 NYCRR 200.6[k][1], [k][1][v]. This student is not in a structured learning environment for 12 months.
The school district has provided a FAPE with SETTS and services to address the student's within the general education setting the parent has placed the student. The district is not required to provide intense services during the summer so that the student can continue in a general education program during the school year.
It is hereby ordered the parent's request for reimbursement is denied. Dated: May 21, 2012
_______________________
MARY NOE, ESQ.
Impartial Hearing Officer
MN:gc
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 District Notification , Summer
of 2010, dated 7/16/10 B Correspondence with the DOE dated 5/20/10, 7/12/10, and 7/20/10 C Fees Paid in 2010 10 D Impartial Hearing Transcript March 2010 E Impartial Hearing Findings of Fact and Decision, 3/10/10 F IESP dated 7/30/09 and 5/11/09 H June 2008 Evaluation, 9 pages I Letter from Dr. J September 2008 Speech Evaluation, 7 pages K Testing Summary, 3 pages
DEPARTMENT OF EDUCATION
1 Notice of Scheduled Resolution dated 4/12/12, 2 pages 2 Due Process Response, 4/12/12, 3 pages 3 RSA, dated 7/29/10, 2 pages 4 Final Notice of Recommendation, signed, dated 6/21/10, 1 page 5 IESP, dated 6/21/10, 11 pages 6 Report Card from 2009/2010 , 1 page 7 5th Grade dated 9/28/09, 1 page 8 ELA New York State Test 4th Grade, 2008/2009, 1 page 9 Mathematics New York State 4th Grade Test, dated 2008/2009, 1 page 10 Teacher Report, dated 6/10/10, 4 pages 11 Related Service Progress Report dated 6/7/10, 1 page 12 SETSS Report, 6/21/10, 1 page 13 Appointment Letter, Private School Annual Review, dated 6/3/10, 1 page 14 Annual Review Parent Appointment Letter dated 6/3/10, 1 page
IHO DESCRIPTION
I Impartial Hearing Request