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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: July 24, 2012
July 25, 2012
Record Close Date: August 9, 2012
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2012
Attorney — Student
Parents
District Representative, CSE — DOE
Teacher — DOE
Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2012
Attorney — Student
Parents
Educational Director at RFTF — Student
Special Education Teacher — Student
OT Provider/Supervisor (via telephone) — Student
Speech Provider (via telephone) — Student
District Representative, CSE — DOE
Ms. ., the mother of ., by her attorney, , Esq., requested an impartial hearing on April 25, 2012 seeking funding for her unilateral placement of (“ ”) for the 2011/2012 school year. I was designated to hear this matter on May 29, 2012 pursuant to 20 U.S.C. Section 1415(f)(1), after the prior hearing officer appointed to the case had recused. An impartial hearing was held on July 24 and July 25, 2012. The compliance date was extended on two occasions, due to the unavailability of witnesses, and the extensive testimony and issues. The final compliance date is August 23, 2012. (IHO Ex. III, IHO Ex. IV).
. (DOE Ex. 1). His classification is not in dispute. (Tr. p. 334). The parents placed in April 2010, after he attended a public school in New Jersey. (Tr. pp. 315, 330). An Educational Progress Report was submitted by on December 6, 2010. It was reported that was in a classroom with four students, with a teacher ratio, receiving related services of ”) one hour per day and (“ ”) forty-five minutes daily. It was reported that ) which had decreased since the implementation of a with tokens every three minutes. He was progressing in his , using 4-5 word phrases with verbal cuing. He showed progress in his visual performance as well as pre-academic skills including completion of inset puzzles, sorting by function and matching associated pictures. In reading, it was reported that he has been reading Grade 1 level stories and has shown improvement in his ability to answer questions. In math, expanded his knowledge of place value, had learned the symbols for greater than and less than and had done work involving ordering numbers up to 100. He received approximately one hour per day of academic instruction. It was reported that entered the program with awareness of many Grade 1 skills including two-digit addition and subtraction, money, time, place value and some geometry but erred in some simpler tasks. (DOE Ex. 7).
In an (“ ”) Progress report dated December 22, 2010, it was reported that was working on improving . It was reported that he had made gradual progress in all areas of . (DOE Ex. 8).
A Classroom Observation of was performed on December 7, 2010. He appeared . His teacher reported that he is good in reading and strong in math. (DOE Ex. 2).
On April 13, 2011, the Committee on Special Education (“CSE”) met to review s program. , a school , the parent, , a certified special education teacher who also served as the District Representative, , a school social worker, , the program administrator from , Ms. , an from RFTS, a from , , a special education teacher from who worked with on a daily basis, and a parent member participated in the meeting. (DOE Ex 3, p. 2; Tr. p. 15, 17-18, 168). The CSE review team did not include anyone who was currently teaching a class with a staffing ratio. (Tr. p. 46).
According to Ms. , the information included in the section of the Individualized Education Program (“IEP”) entitled “Academic Performance and Learning Characteristics” came from staff from and progress reports. (Tr. p. 20). Ms. provided the academic levels reported in the IEP. (Tr. p. 22). It was estimated that was decoding on a second grade level, but that his reading comprehension, listening comprehension and writing skills were on a first grade level. His computation skills were reported to be on a 3.5 grade level, but his problem solving skills were on a 1.5 grade level. (DOE Ex. 3, p. 3). In the section of the IEP entitled “Social/Emotional Performance”, it was noted that has a diagnosis of , that he is still very with family members at home. The school reported a and . It was reported that he demonstrates some interest in his peers. (Id. at 4). It was further . (Id. at 5).
The CSE determined that seriously interfered with instruction and recommended a ”) and an individual paraprofessional. (Id. pp. 4, 19, 20). The BIP was developed based upon information provided from school participants at the IEP meeting. (Tr. pp. 24-25). Ms. has its own but would not share it with the CSE, stating that it only works within that setting. (Tr. p. 25). The attached to the April 13, 2011 IEP describes the . The plan provides for the use of immediate positive reinforcement of appropriate behavior (verbal praise and tangible reinforcers), high interests activities, modeling, structured socialization and redirection. (DOE Ex. 3, p. 20). According to Ms. , tangible reinforcers include tokens. (Tr. p. 57).
Ms. testified that the goals were developed as they were finishing the meeting. (Tr. p. 29). 1 The IEP includes goals for participation in adaptive physical education; improving sensory processing skills, fine motor precision and visual motor integration, and increasing postural control and lower extremity strength.2 With respect to the and Physical Thereapy (“PT”) goals, the IEP fails to specify the method of measurement. Ms. testified that this was an omission, but what was intended was that progress would be measured through class activities, teacher/provider observation and performance assessment. (Tr. p. 63; DOE Ex. 3, p. 8). Ms. testified that the goals were provided by the from . The goals include short-term objectives which appear to have been taken from an Progress Report submitted by dated December 22, 2010 (DOE Ex. 3, p. 6; DOE Ex. 8).3 In that report, the described progress from the start of the school year until December 2010. The CSE selected skills in which had progressed as short-term objectives. (DOE Ex. 8; See Tr. pp. 286-287).
In the area of academics, the IEP includes goals for improving phonetic and structural analysis skills (one syllable and multi syllable words), developing vocabulary commensurate with grade and reading level;4 identifying key words, locating pertinent data and creating charts and tables; improving reading comprehension (by recalling sequence of events and drawing inferences); and demonstrating proficiency in addition and subtraction, and improving expressive writing skills (to form a comprehensive paragraph with one main idea in at least three subordinate ideas). For each of these goals, the stated method of measurement is teacher made materials, class activities and 1 In a “Contact Sheet”, dated April 13, 2011, it was reported that the discussion at the meeting included a discussion of needs. were discussed and a psychiatric was reviewed. “All areas of functioning and all goals were discussed. School and parent agreed with goals”. (DOE Ex. 4). Ms. . testified that the goals and objectives were not discussed with her in detail. (Tr. p. 325). 2 Ms. testified that the goal of increasing postural strength and lower extremity strength is a physical therapy goal. She stated that is not receiving physical therapy (“PT”) at . (Tr. p .29). 3 The CSE appears to have selected two short-term objectives for each of the goals. The report provides at least six short-term objectives for each of the goals. 4 Ms. testified that given his age, would be placed in a class with students in grades . (Tr. p. 28). She acknowledged that the goals for improving phonetic analysis, identifying key words, and improving ’s reading comprehension did not include a grade level, but stated that his functional level was end first/ , and moving into (based upon her observation of him) . (Tr. pp. 65, 86-87). She testified that given his grade level would be decoding CBC (sic) words, words with silent “e” at the end, or moving into two syllable words. (Tr. pp. 86-87). With respect to computation and word problems, his goals would be implemented based upon his instructional level. (Tr. pp. 88-90). teacher/provider observations. None of the academic goals include short-term objectives. (DOE Ex. 3, pp. 15-16).
The IEP also includes goals for increasing expressive and receptive language skills, intraverbal language skills, manding skills pragmatic language, speech production, oral motor skills and play skills. 5 (DOE Ex. 3, pp. 6-16). The ST goals were provided by the speech therapist (Tr. p. 31). They include detailed short term objectives. The methods of measurement indicated in the IEP are class activities and teacher/provider observation. (DOE Ex. 3, pp. 11-14).
The CSE recommended placement in a special class in a specialized school ( ), with related services of ST (4 x 45 individually, and once in a group of 2:1); and OT (4 x 45 individually); Counseling, once per week for individually for forty-five minutes; PT,(3 x 45 individually) and a full-time behavior management paraprofessional). (DOE Ex. 3, p. 19).
At the time of the CSE review, was in a class at RFTS where he received 1:1 teaching throughout the day. (Tr. p. 35). The parent and school requested that he continue to receive that type of instruction; however the CSE rejected their requested program as too restrictive. (Tr. pp. 38, 46; DOE. Ex. 3, p. 18). Ms. testified that the CSE’s recommended program, as described in the April 13, 2011 IEP, would have sufficiently addressed ’s academic and social needs, and that it was appropriate for him. (Tr. pp. 38, 41).
On June 15, 2011, the CSE sent the parent a Final Notice of Recommendation recommending placement for in a special class in specialized school (6:1:1), at P 370K, the School, with a crisis paraprofessional, a special transportation paraprofessional, and all of the related services recommended in his IEP. (DOE Ex. 1).
, the administrative coordinator at the recommended site, testified that she is a licensed special education teacher. (Tr. pp. 92-93). has between 240 and 260 students across seven or eight locations. The main site, School, which was recommended for , is able to accommodate 112 students, aged 11 through 21. (Tr. p. 95). The school has ten
Ms. testified that the goals for and developing play skills were also goals. (Tr. pp. 39-40). classes for students, three classes for students and two classes for students. (Tr. p. 96). Paraprofessionals at the school are required, at a minimum, to have a high school diploma. (Tr. p. 98).
In July 2011, the school had a seat available in a special class for the youngest group, with students aged 11 through 13. The students in the class were classified with autism. (Tr. pp. 96, 13). The teacher of the class (as of September 2011), Ms. was a certified special education teacher. (Tr. pp. 96-97). 6The students’ academic levels varied from the pre-k level to second grade level for math. With respect to decoding skills, the range was from pre-k to the fifth to sixth grade level. For comprehension, the range of levels was from pre-kindergarten to first grade. (Tr. p. 132-134, 136). The class included students who would be in grades six through eight. (Tr. p. 100). She testified that would have been appropriately placed in Ms. ’s class, taking into account his age and functional levels. (Tr. p. 110).
The teacher used a variety of methodologies including ABA and TEACHH. (Tr. p. 101). Students are assessed early in the school year, using the Brigance; and later in the year to see what progress they made. (Tr. p. 103). The daily routine includes breakfast, morning meeting, and the various subjects. Subjects include math, reading, life skills (including science, nutrition and health). Later in the morning, the students do yoga. After lunch, there is a hygiene period, followed by special subjects including music, art or gym. (Tr. p. 105). The school has several floors, and is serviced by an elevator. (Tr. p. 106).
The students receive discrete trial teaching, individually for 15 to 20 minutes per day (Tr. pp. 101-102). Throughout the day there are other opportunities for one-to-one instruction from the teacher or paraprofessional. (Tr. p. 107). All related services are available within the school. OT is provided in an OT room, or in the classroom, if needed. (Tr. p. 108). As of June 23, 2011, when the parent went to visit the school, the school had on staff three speech providers, one occupational therapist, a physical
6 During the summer months a different certified teacher would be assigned , and his IEP would have been implemented. (Tr. pp. 120, 144). Ms. testified that this is a normal process, and that the transition difficulties of autistic children tend to be more related to their movements throughout the day, than from relating to one particular person or another. (Tr. p. 125). therapist and several counselors. (Tr. p. 138). As of July 2011, there were three , and one or two physical therapists. (Tr. p. 144).
Ms. testified that the school provides adaptive physical education, as well as all of the related services recommended in ’s IEP. (Tr. p. 111). She testified that all of ’s IEP goals could have been implemented in Ms. ’s class. She testified that his goals would be read, in conjunction with his estimated academic levels. (Tr. pp. 112-114). His goals could be updated to reflect his progress, or new information obtained from classroom assessments. (Tr. p. 116).
Ms. testified that in addition to ’s individualized BIP, the school has a schoolwide behavior program called the “ .” (Tr. p. 116). ’s teacher will work with his paraprofessional to plan. (Tr. p. 118).
Mrs. ., ’s mother, testified that prior to , for , a large public school in New Jersey, which served all types of children. (Tr. pp. 315, 330). There were five or six students in the class with one teacher and a paraprofessional. While made progress in school, his behavior at home was unmanageable. (Tr. pp. 331-332). She testified that she attended the April 13, 2011 CSE review, and that four staff members of participated by telephone. (Tr. p. 315). When she received the final notice of recommendation, she went to visit the recommended site. (Tr. p. 318). She felt that the recommended school would not provide a sufficient amount of . She was also informed that the school could not provide forty-five minute sessions of ; and could only give 30 minute sessions. (Tr. p. 319).
On June 30, 2011, the parent wrote a letter to the CSE rejecting the recommended site “because it is not appropriate for and fails to meet his IEP needs”. She expressed concern that would receive only 20 minutes per day of instruction. In addition, she was concerned that the crisis paraprofessional would not be effective if she were not fully trained in the principles of behavior. She also wrote that the students do not have access to the service elevator. In addition, she wrote that she was concerned that the school would not address all of ’s speech therapy needs. She stated that she intended to enroll for the 2011-2012 school year and seek funding. In her letter rejecting the placement, the parent did not object to any of ’s IEP goals or short-term objectives. (Par. Ex. H).
Mrs. . testified that the parents have not made any payments toward 2011-2012 tuition at (which is $93,000) because they earned less than $20,000 in both 2010 and
2011. (Tr. pp. 319-320; See Par. Ex. D).
Mrs. . testified that during the 2011-2012 school year, became more compliant and improved his ability to express his needs. (Tr. p. 322). The family has also benefited from services the school provided at home, to assist them with getting dressed, and ready for school; and to decrease his at home. (Tr. pp. 323-324).
, the educational director for testified that she has a master’s degree in special education, an advanced certificate in school administration and supervision, and has completed coursework in applied behavior analysis (“ABA”). She is a certified special education teacher. (Tr. pp. 158-159). is a private school serving students with , aged 2.9 to 13 (with a charter to serve students up to age 21). (Tr. p. 159).
During the 2011-2012 school year, had 19 or 20 students, initially. The school has a very high staffing ratio, with approximately 30 staff members, including teachers, therapists, and and additional teachers for every student. (Tr. p. 160). Students receive ABA teaching throughout the school day. (Tr. p. 211). During group work, they have the opportunity to generalize the skills they are learning from their individual instruction. (Tr. p. 217). The school also uses visual schedules, which is a component of the TEACCH methodology. (Tr. p. 222).
In preparation for ’s April 13, 2011 CSE review, prepared a proposed description of s “ ” and “ ”( Par. Ex. N), which appears to incorporate the December 10, 2012 Educational Progress Report. (DOE Ex. 7). The present performance sections actually included in the April 13, 2011 IEP are less detailed than those provided by . (DOE Ex. 3, pp. 3-4; Tr. pp. 171-173). According to Ms. , the IEP, as written, would not be sufficient to inform a teacher how to teach . (Tr. pp. 173-174). She testified that nothing in the description of and learning characteristics was inaccurate; however she disagreed with the estimate of his grade levels, as reported in his IEP. (Tr. pp. 205-206). She testified that his reading skills range are on grade one level; although his ability to answer some questions like “how” and “why” are lower. In math, he had some skills on an end of grade one or middle of grade two level. (Tr. p. 202). She explained that it is difficult to grade , because “he’s not complete in any area”, and his grades range from Pre-k to third grade. (Tr. p. 202).
When attending , in April 2010, he presented with severe maladaptive behaviors including high rates of aggression and noncompliance. (Tr. p. 176). He came from a public school system that had enhanced his reading and math skills, although he had gaps in his comprehension and math skills. He had some high level math skills, including adding three digit number, but lacked knowledge of one’s and ten’s columns. He could read a few sentences from a book, but lacked comprehension of what he had read. (Tr. p. 177).
Through one-to-one teaching, his maladaptive behaviors have been reduced, and his rate of learning has increased. (Tr. pp. 177-178). One-to-one teaching has also assisted him with his intelligibility and communication. (Tr. p. 179). ’s lead teacher has a master’s degree in special education. The other teachers who work with have at least a bachelor’s degree. (Tr. pp. 181-182). Ms. testified that, in her opinion, a one-toone crisis management paraprofessional (as recommended by the DOE) is not the equivalent of the teaching provided at , where staff is trained. (Tr. p. 180).
Since July 2011, has progressed in his through the use of visual supports. He has increased his . He receives five times per week for sixty minutes, within the classroom. (Tr. pp. 183-184). The school has also worked with the family to reduce , and to assist them in getting ready for school. (Tr. pp. 224-225).
Ms. testified that while some of the goals contained in the April 13, 2011 IEP are measurable, many are not. She testified that the expressive writing goal (for to write a series of sentences to form a comprehensive paragraph) is way above what he can do. (Tr. p. 188). Ms. testified that at least some of language goals contained in the April 13, 2011 IEP (DOE Ex. 3, pp. 11-14) were provided by . (Tr. pp. 197-198).
, ’s lead teacher during the 2011-2012 school year,[7] testified that although receives one-to-one instruction throughout the day, he has many opportunities to participate in group instruction. (Tr. p. 232). She testified that all of the teachers at the school have gone through extensive ABA training. She testified that due to ’s high levels of behaviors, the person assigned to him must be fully versed in behavior management. She testified that since July 2012, has made improvements in all areas; but particularly in his behaviors. (Tr. p. 233). At the start of the year, he had . By the end of the year, there was very little noncompliance. (Tr. pp. 233-234). She opined that within the program recommended by the DOE, would exhibit bit a lot more , without the constant supervision by a teacher with extensive knowledge of and . In addition, due to his limited language, his instruction needs to be customized. She does not believe he could receive that type of instruction within the recommended program. (Tr. pp. 237-238).
During the 2011-2012 school year, made academic progress in reading, writing and math. In math, he can read and understand numbers up to 1,000, and he can do addition with carrying. His reading comprehension has progressed from a kindergarten level to an end of grade one level. His reading fluency has also improved. He has also shown improvement in writing and copying from the board. (Tr. pp. 239-240).
Reviewing the BIP in the April 13, 2011 IEP, Kim Wasserman testified that she agreed with the description of which interfered with learning; but feels that the strategies described in the BIP are not sufficiently detailed or measurable. (Tr. pp. 247249). She opined that a crisis intervention paraprofessional would not have the training needed to follow through with the ; and that the teacher would not be able to closely monitor the behaviors. She opined that he would have high levels of behaviors in that situation. (Tr. pp. 249-250).
, a licensed occupational therapist, testified that is one of her students. (Tr. pp. 266-268). Reviewing the April 13, 2011 IEP, she testified that the goal of improving sensory processing skills was appropriate. (Tr. p. 274). As ’s , she worked with him on his sensory processing skills, and on fine motor precision and visual motor integration, which was another OT goal, in the April 13, 2011 IEP. (Tr. p. 275; DOE Ex. 3, p. 6). She disagrees with the short-term OT objectives set forth in the IEP, and testified that those objectives had already been met at the time of the April 13, 2011 meeting. (Tr. pp. 286287).[8] She also worked with him on postural control, but stated that the goal should be broader than just working on stair negotiation skills. (Tr. pp. 277, 285).
During the 2011--2012 school year, improved his . He is more regulated, less impulsive and demonstrates controlled movements. His overall coordination has improved, and he does not fall as much as he used to. (Tr. p. 280). He requires an elevator, due to his low endurance; and wide corridors, so that he can be accompanied. (Tr. pp. 287-288).
, a certified pathologist, testified that she was therapist during the 2011-2012 school year. (Tr. p. 300). Reviewing the April 13, 2011 IEP, she testified that had already met some of the short-term objectives for , when the IEP was written. She testified that the goals, as written in the IEP, were very general. She participated in the April 13, 2011 CSE review and recalls discussing what areas ; and what were his continued deficits. She testified that she did not know where the DOE got the short-term objectives that appear in the IEP. (Tr. pp. 302-305). During the 2011-2012 school year, Ms. provided with five times per week for 60 minute sessions, individually. (Trp. 306). She does not believe that would benefit from receiving ST in a group of two students due to his and his (Tr. p. 308). She testified that during the 2011-2012 school year, improved in his ability to communicate more appropriately with instructors and others. Specifically, he developed the ability . (Tr. p. 310). DOE Position
The DOE’s position is that its IEP and recommended class provided with a FAPE and that the parents are not entitled to any of the relief they are seeking. (Tr. p.
337). The DOE argued that any ambiguity in the IEP goals could be corrected at the start of the school year through further evaluation of the child. (Tr. p. 342). Parent’s Position
The parents’ position is that the April 13, 2011 IEP is inappropriate because (1) it fails to appropriately describe ’s special education needs; (2) the is insufficient; (3) the staffing ratio fails to provide a sufficient amount of support; (4) the goals and objectives are insufficient, unmeasurable, and could not be reasonably obtained in the proposed program (5) and the CSE composition was invalid. (IHO Ex. I; Tr. pp. 335336).[9] In addition, the parent argues that would not have access to an elevator at the recommended site. (IHO Ex I, p. 2). The parent maintains that appropriately met ’s special education needs. (Tr. p. 337).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. [Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be 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, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. Application of a Student with a Disability, Appeal No. 11-162 (citations omitted). The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997).
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21 (citing 8 NYCRR 200.4[d][2][iii]). Each annual goal should include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. Id. at 21; 8 NYCRR 200.4[d][2][iii][b]. For a student who takes a New York State alternate assessment, the IEP shall also include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal. 8 NYCRR 200.4[d][2][iv]; Application for the Review of a Determination of a Hearing Officer Appeal No 11-037. 10
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii). Whether the goals and short-term objectives included in an IEP are appropriate is an initial procedural inquiry. M.H. and E.K. v New York City Department of Education, 59 IDELR 62 (2d Cir. 2012).
is a student who was recommended for alternate assessment. (DOE Ex. 3, p. 19). Composition of the CSE Review Team
34 C.F.R. 300.321 provides that an IEP team must include a regular education teacher of the child, (if the child is or may be participating in the regular education environment) and not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child. The special education teacher or provider should be the person who is or will be responsible for implementing the student’s IEP. Application for Review of a Determination of a Hearing Officer, Appeal No. 11-040. In Application for Review of a Determination of a Hearing Officer, Appeal No. 11-040, the State Review Officer held that the fact that the special education teacher member of the review team was not the person responsible for implementing the student’s IEP did not constitute a denial of FAPE, where the student’s then-current private school special education teacher participated in the review, and the review team considered a teacher’s report and the concerns of the teacher.
In the instant case, while none of the participants would be implementing the recommended program, the IEP team included three of ’s special education providers, and an administrator from the school who was familiar with his functioning. Under these circumstances, I find that the failure of the CSE to include someone who would be implementing his IEP did not constitute a denial of FAPE. Behavior Intervention Plan
I find that the BIP was appropriately developed, at the CSE review, based upon the information provided by staff and the parent. Inasmuch as was in attendance at at the time of the meeting, there would have been little value to performing a Functional Behavioral Assessment prior to creating the . See Application of Student with a Disability, Appeal No. 11-032. I further find that it was reasonable for the CSE to expect that a full-time crisis management paraprofessional could implement the BIP, under the supervision of a certified, special education teacher. Staffing Ratio
The record indicates that has previously made academic progress in a class of five or six students with a paraprofessional, and that the chief impediment to his continued progress was his behavior. I find that it was reasonable to expect that could make academic progress within the recommended class, with the addition of a paraprofessional to implement his BIP. Description of ’s Academic Needs
The parent’s witnesses did not disagree with the IEP’s description of academically or behaviorally. They disagreed, however, with the teacher estimates of his present academic levels and stated that the IEP was not as descriptive as the information they had provided the team.
Ms. testified that the teacher estimates of ’s academic levels came from Ms. , the program administrator at . The reported levels of ’s reading abilities (first grade; with decoding estimated to be at the second grade level) is consistent with the Educational Progress Report (DOE Ex. 7) in evidence; and with the testimony of Ms. Wasserman, that had some higher level “splinter” skills, such as the ability to read a few sentences, without comprehension.
With respect to the reported math levels (1.5 for problem solving; 3.5 for computation), Ms. testified that these estimates were based upon information provided by ’s teachers and providers. The progress report indicated that when entered the program he had awareness of two-digit addition and subtraction, money, time, place value and some geometry but erred in some simpler tasks. According to the description of his present performance provided by for the April 13, 2011 review, he could order numbers up to 100, identify place value for numbers in the ones and tens, and learned the symbols for greater than and less than. There is no indication in the record that can perform level computations, or what this meant in terms of his actual skills.
The IEP contains no description of ’s writing skills. This is significant, because the CSE drafted an expressive writing goal which was above ’s level. (see below). Appropriateness of IEP Goals and Short-Term Objectives
I find that the CSE failed to fulfill its obligation to establish appropriate annual goals with the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal, as required by 8 NYCRR 200.4[d][2][iii][b]. In addition, with the exception of the short-term objectives, which were provided by , the IEP fails to provide an appropriate description of short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal, as required by 8 NYCRR 200.4[d][2][iv].
None of the reading, writing and math goals contained in the April 13, 2011 IEP include short-term objectives. The reading goals are vague. The math goals include addition and subtraction only; with no mention of other math skills he had been working on, as reported by (place value, symbols, ordering numbers). The expressive writing goal of writing sentences to form a paragraph has no basis in the record. I credit Ms. that this is way above ’s level. There is no indication that had any writing skills beyond handwriting and copying. I also credit Ms. , that the short-term objectives for included in the IEP, had already been met when the meeting occurred. This testimony is consistent with the report in evidence. (DOE Ex. 8).
I further find that the deficiencies in the goals and short-term objectives in ’s IEP, are so pervasive as to cause a deprivation of educational benefits and a denial of FAPE. See 20 U.S.C. Sec. 1415(f) (3) (e) (ii); M.H. and E.K. v New York City Department of Education, supra. Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128
S. Ct. 436 (2007).
I find that the parent demonstrated that is an appropriate educational program designed to meet ’s unique needs.
At , was educated in a small class, where he received instruction, at all times, from special education teachers and related service providers. He benefited from the and experienced a reduction of . The school also provided the parent with assistance in managing ’s at home. During the 2011-2012 school year, made progress in his communication skills, comprehension and fluency, handwriting, and math. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
The 1997 IDEA amendments clarify that tuition reimbursement may be reduced or denied, if parents neither inform the CSE of their disagreement with the proposed placement, including stating their concerns and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sec. 1412[a][10][C][iii][I]; Rafferty v. Cranston Public School Committee, 315 D. 3d 21 (1st Cir. 2002); Application of the Board of Education of the Briarcliff Manor Union Free School District, Appeal No. 04-022. The ten day notice should adequately inform the school district of the parent’s objections to the IEP. See Wood v. Kingston City School District, 55 IDELR 132 (U.S.D.C.N.D.N.Y. 2010). The purpose of the statute is to give the CSE an opportunity to reconsider its recommendation and to correct any alleged deficiencies in the IEP. Application of a Child with a Disability, 03-062.
The record indicates that the main concern expressed by the parent and RFTS staff, at the CSE meeting, was that continue to receive one-to-one instruction. There is nothing in the record to indicate that the parent (or any of the RFTS providers) voiced objections to the goals and short-term objectives either at the CSE meeting, or subsequently, when the parent submitted her 10 day notice. Had these objections been noted at the appropriate time, the CSE would have had the opportunity to correct the deficiency in the IEP. Furthermore, based upon the testimony of Ms. the DOE proved that the recommended site could implement ’s IEP, including and access to an elevator. See T.Y. v .New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
Taking into account the parent’s failure to cooperate with the CSE, by stating her concerns regarding the inadequacy of the IEP goals and short-term objectives prior to placing the child at , I find that an award to the parent should be reduced by fifty (50) per cent. The parent has demonstrated that she was unable to pay the tuition at , and seek reimbursement.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall fund fifty
(50) per cent of the parent’s tuition expense for at for the 2011-2012 school year, by making payment directly to the school Dated: August 22, 2012
__________________________________
DORA M. LASSINGER, ESQ.
Impartial Hearing Oficer
DL:dl
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 JULY 24, 2012
PARENT
A Educational Progress Report, 6/1/12, 4 pages B Progress Report, 5/2012, 6 pages C IEP Addendum, 4/27/12, 4 pages D Affidavit, dated 3/1/12, 1 page E Teacher Language Progress Report, 12/21/11, 3 pages F Educational Progress Report, 12/6/11, 3 pages G Enrollment Contract, 9/20/11, 3 pages I Annual Evaluation, 6/1/11, 8 pp. H Letter to the CSE from the parent, dated 6/30/11, 2 pages J IEP, dated 6/1/11, 10 pages K Program Summary, undated, 1 page L Schedule 2011-2012, undated, 1 page M 2011-2012 Attendance Record, undated, 1 page
DEPARTMENT OF EDUCATION
1 Final Notice of Recommendation, dated 6/15/11, 1 page 2 Classroom Observation, dated 12/7/10, 2 pages 3 IEP, dated 4/13/11, 20 pages 4 Contact Sheet, dated 4/14/11, 1 page 5 Notice of Deferred Placement, dated 4/13/11, 1 page 6 Classroom Observation, dated 1/31/12, 2 pages
IMPARTIAL HEARING OFFICER
1 Request for Hearing, dated 4/25/12, 2 pages 2 Prehearing Conference Summary, dated 5/30/12, 1 page 3 Case Follow-Up Sheet, dated 6/14/12, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 25, 2012
PARENT
N Academic Performance, Learning Character, Social/Emotional Performance, dated 4/13/11, 2 pages O Evaluation, dated 6/24/11, 11 pages P Progress Report, dated 12/15/11, 5 pages Q 2011-2012 OT IEP Goals, 2 pages R 2011-2012 OT IEP Goals, 3 pages S , Undated, 1 page
DEPARTMENT OF EDUCATION
7 Educational Report, dated 12/6/10, 3 pages 8 Report, dated 12/22/10, 5 pages
IMPARTIAL HEARING OFFICER
4 Case Follow-up Sheet, dated 7/25/12, 1 page
Footnotes
[7] was out on a maternity leave between January and March 2012. During that time period, another teacher, substituted for her. (Tr. pp. 254-255).
[8] The short-term objectives appear to have been taken from the RFTS OT progress report dated December 22, 2010. (See DOE Ex. 8; Tr. p. 295). A review of that report indicates that, as of December 2010, had already progressed in the specific areas set forth in the April 13, 2011 IEP as short-term objectives under the goals of improving sensory processing skills and fine motor precision. (DOE Ex. 3, p. 6; DOE Ex. 8).
[9] While the parent argued, at the conclusion of the hearing, that the DOE failed to conduct or review any evaluation, in preparing the IEP, the failure to evaluate was not specifically alleged in the due process complaint. (Tr. p. 333; IHO Ex. I).