NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth: District:
Hearing Requested By: Parent
Date of Hearing: August 8, 2013 ` September 18, 2013
October 31, 2013
Actual Record Closed Date: November 27, 2013
Hearing Officer: Sharyn Finkelstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2013
FOR THE STUDENT
(via telephone) Advocate for Parent
Parent
FOR THE DEPARTMENT OF EDUCATION
CSE representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18, 2013
FOR THE STUDENT
(via telephone) Advocate
Mother
FOR THE DEPARTMENT OF EDUCATION
Department of Education Representative (via telephone) Witness
NAMES AND TITLES OF PERSONS WHO APPEAERED ON OCTOBER 31, 2013
FOR THE STUDENT
(via telephone) Parent Advocate
Parent (via telephone) Teacher (via telephone) Feeding Therapist (via telephone) Speech Therapist (Via telephone) Occupational therapist
FOR THE DEPARTMENT OF EDUCATION
CSE DOE Representative (via telephone) Assistant Principal
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of (“ ”) for the 2012-2013 school year. I held a pre hearing conference on June 25, 2013, after the end of the resolution session. Hearings began on August 8th and were concluded on October 31, 2013. The parent and the District requested several adjournments and extensions of the time line. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the requests for extension of the compliance date were granted. The parent was represented by their advocate Ms. who requested to submit a written closing. I received the written closing argument on November 27, 2013 and the record was closed.
A list of persons in attendance at the hearings and evidence submitted on the various dates are appended to the decision.
BACKGROUND
year old student with a classification of . (Exhibit Joint A) He has an intellectual deficiency and . He has (Tr. 104) An annual review meeting was held on May 17, 20121. The team recommended a special class with a student to staff ratio and related services of speech, occupational therapy, physical therapy and a registered nurse. (Exhibit Joint A) is a twelve month student. (Tr. 29) They recommended limited time travel not to exceed thirty minutes in an air conditioned bus. (Tr. 29) The parent disagreed with the recommendation and re-enrolled Intelligence. (“SCHI”) She requested this hearing to obtain tuition for the 2012-13 school year. (Exhibit A).
DISTRICT'S CASE
The District was represented by Ms. on various hearing dates. They maintain that they provided DOV with a FAPE for the 2012-13 school year. In addition they argue
1 The parties refer to the IEP meeting dated May 18, 2012, however, the last page of the IEP (Joint A 19) which lists the names of people who attended is stamped May 17, 2012. that was not appropriate and the equities do not favor the parent. In summary it is their position that tuition funding should be denied in its entirety.
PARENT'S CASE
The parent was represented by her advocate Ms. . They argue that the DOE failed to offer with a FAPE. They argue that the class ratio and the goals are not appropriate. In addition they maintain that the failure to a Functional Behavior Assessment (FBA) and Behavior Intervention Plan denied a FAPE. (Exhibit A) They maintain that the is appropriate. They maintain that the equities support the parent. In summary it is their position that tuition funding should be granted in its entirety.
FACTS
Ms. a special education teacher assigned to CSE, attended the IEP meeting as the District Representative and the special education teacher. Also in attendance were: Ms. mother, Ms. , parent's advocate, a psychologist, and various staff from , including a teacher, a therapist, . (Tr. 21) (Tr. 44) (Exhibit Joint a page 19)
The team had various reports. They had an IEP and reports from various providers. (Tr. 45) The team attempted to conduct formal testing on March 30, 2011 but were unsuccessful. (Tr. 26)
The team request medical information from the parents and went over all medical information that was on the IEP. The parent said it was accurate. (Tr. 49) Ms. Dalton described it as an important piece of the IEP and they went over it in depth. (Tr. 53) The team recommended direct nursing services one to one at school as needed (Tr. 53)
Everyone had an opportunity to participate and ask questions. (Tr. 23) The team considered less and more restrictive programs. (Tr. 47)
A Final Notice of Recommendation (“FNR”) dated June 28, 2012 was sent to the parent naming as the school. (Joint b))
is a totally special education school. All the teachers are licensed and certified in special education. (Tr. 64-65) The related service providers are all licensed. (Tr. 65) Ms. works at which is a totally special education school as the assistant principal. She also supervises teachers and the staff. (Tr. 64) The placement identifies a program (Exhibit Joint 2) would have been seven. They had 12:1:4 classes available and could have provided and .(Tr. 68) They group the students according to classification of disability and age. (Tr. 70)
The class is broken up into groups for reading and math. (Tr. 72) The Paraprofessional teach students under the direction of teacher for specific classes (Tr. 73) Everything is differentiated. Part of the period for literacy and part of the period for math are broken up into groups. (Tr. 73)
The FNR provided with a registered nurse. (Exhibit Joint b) They have three registered nurses on staff. Two of them primarily work with the 12:1:4 population. In the classroom there are one to one nurses with other children. There is often a nurse in the room. (Tr. 79) All the nurses do . The nurses have a schedule for the child and in addition they see a child as needed in between. (Tr. 80) The nursing staff meets with parents to discuss the student's medical problems. They would be in contact with the student's Doctor if parent gives permission (Tr. 90)
All of the paraprofessionals are trained to toilet trained and are under direction of teacher-modeled. Most of children that come in are not toilet trained (Tr. 81)
The parent signed a contract prior to visiting the recommended placement. (Exhibit J) She The visit the proposed placement and did not agree with the recommendation. She sent a ten day notice on June 13, 2012 indicating her plan to reenroll (Exhibit E)
Ms. is certified in general and special education in the State of New Jersey (Tr.
102) She is a teacher (Tr. 103) was a student in her class which consisted of six students and seven adults. She was the head teacher in the classroom with a co-teacher and five teacher's aides. has a specific aide assigned. (Tr. 103) He has behaviors that required intervention by special individual aids. She created programs and a BCBA behavior consultant reviewed the program and 's one on one actually implemented the lessons (Tr. 110)
They use principals of ABA and discrete trial program in the classroom. needed to be monitored for . He required . They worked on requesting, following directions and basic problem solving. He required constant diaper changes, had difficulty dressing himself and difficulty chewing and drinking from a cup. He received feeding therapy. All the nurses were familiar with his condition (Tr. 134)
is a Board recognized swallowing specialist candidate who worked with as his therapist. He could . (Tr. 139) He had therapy at least four times a week and she worked directly with him about once a week. They provide with interventions when he is eating lunch (Tr. 137)
MS. is a speech pathologist and employed by the . She works four times a week individually. has many deficits in expressive language, receptive language and articulation and oral motor. He uses very minimal words to convey his requests or comments and to answer questions. They work on oral motor and articulation and how to manage his saliva and his awareness of being wet versus being dry (Tr. 153) She collaborated once a week officially with the teacher and all the other therapists to talk about his progress and what modifications could be implemented in the class.
Ms. is a licensed occupational therapist who provided with therapy three times a week on an individual basis (Tr. 162) and very . They worked on physical activities for his (Tr. 162)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dept of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).
One of the main purposes of the Individuals with Disabilities Education Act (
IDEA) (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which 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 Child with a Disability, Appeal 6No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).
An IEP must contain: (1) the student's present levels of academic achievement and functional performance; (2) measurable annual goals for the child; (3) the method used to measure the student's progress toward those goals...” M.H. v. N.Y.C. Dep’ t of Educ, 685 F.3d 217, 245 (2d Cir 2012) (citing 20 U.S.C. § 200.4(d)(2).
The SRO has held that an IEP is appropriate even when the goals are “poorly written and unclear in some respects” so long as the IEP addresses the Student's special education needs. Application of a Child with a Disability. Appeal No. 12-108. Further, measurable annual goals are those “which provided a framework for further refinement by the classroom personnel responsible for overseeing the child's program,...written with requisite specificity to enable the child's teachers and petitioners to understand the [CSE}'s expectations with respect to teach annual goal and what the child would be working on over the course of the school year.” M>S. V N.Y. City Dep't of Educ. 583 F. Supp. 2D 498, 508 (S.D.N.Y. 2008).
An IEP team must conduct certain assessments and consider all evaluations and reports provided to the team, and any other assessments that they deem necessary. 20
USCS §1414(b)(2); 8 NYCRR §200.4(b)
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).
The SRO and the Courts have ruled that the IDEA does not specify any particular level of educational benefit that must be provided by the recommended program. Rowley, 458 U.S. At 197 n.21; see also, Grim v Rhineback Cent. School Dist., 346 F.3d 377, 379 (2003); Walzak, 142 F.3d at 132. In other words, the law only requires the District to provide an appropriate education,” not one that provides everything that might be thought desirable by loving parents” Tucker v. Bay Shore Union Free Sch. Dist, 873 F.2d 563, 567 (2d Cir. 1989). Therefore a District meets its obligation under IDEA if it provides “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. At 203.
The CSE has an obligation to involve petitioner meaningfully in the IEP development process. Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a Disability, Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F. Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a Disability, Appeal No. 02-015. This obligation includes providing the parents with written notification within five days prior to the meeting to ensure they have an opportunity to be included in the development of their child's IEP. NYCRR §200.5.(c)(1).
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. At 203-204.
In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision.
The parent argues in the complaint that the team was not duly constituted. I find that the team had all the required members including a parent advocate and persons who had firsthand knowledge of Dov.
The parent argues that the goals were develop without the parent's participation. Ms. testified that the team went over every provider report that included goals and made certain modifications. There is no evidence that the parent did not have every opportunity to participate and express her opinions during the meeting. The fact that the team did not agree in every instance with the parent does not mean that she did not have an opportunity to participate. I find that the evidence establishes that all the parties had ample opportunity to express their opinions.
In this case the parent argues that the team did not have sufficient and recent information regarding . The evidence establishes that the team relied on several documents including reports from the school had attended. In addition, there were several members of the meeting who had personal knowledge . There was representation from his school as well as his parent. The team was very aware of which are identified on the IEP. I find that the fact that the team was unable to complete formal testing does not in and of itself a procedural error. I find that they did consider recent information regarding 's needs including .
In this case the parent argues that the staffing ratio of is not appropriate They argue that he requires assistance in order to succeed. It is well known that a parent is bound by issues raised in the complaint and although this is now being raised as a main issue, this was not alleged in the complaint. Nevertheless, I am not persuaded that would not be able to learn with the recommended staffing ratio. Ms. opined that requires a one to one designated paraprofessional, however, acknowledged that this was not something she shared with the team. (Tr. 131) I find that the staffing ratio would have provided with small group instruction and individual instruction and attention for part of the day. .
The parent argues that the CSE failed to draft an Assessment (“FBA”) and Behavior Intervention Plan (“BIP”) to address and needs. The testimony establishes that medical issues are his number one issue. Parent's own witness testified that the primary thing that impacts his learning is his health. (Tr. 123) Neither the school or parent indicated a need for a Behavior Intervention Plan at the meeting. (Tr. 33) At the IEP meeting there was no indication that there were serious behavioral issues to warrant a behavioral intervention plan. (Tr. 51) SCHI does not have either an FBA or a BIP. I do not find that the failure to develop either the FBA or BIP was a procedural violation in this case and I find that it certainly did not rise to the level of denial of a FAPE.
When an FBA is not conducted, the court must take particular care to ensure that the IEP adequately addresses the child's problem behaviors. See A.C., 553 F.3d at 172.
The parent alleges that the goals are not appropriate. It is undisputed that the team was aware of .(Tr. 104-105, 171-172, 48-52) did not have a FBA but they had behavior interventions in the classroom. (Tr. 112) They had some behavior management techniques and within the classrooms they taught him in small incremental steps to manage frustration. They would break down activities and used incentives and rewards. They use communication boards. (Tr. 105) These were strategies specific to him in the classroom. (Tr. 106) would and was perceived as challenging and would touch other children. This was discussed at length at the meeting. (Tr. 31) They use positive reinforcement, token boards, picture cuing, and sensory diet. (Tr. 91)
There was testimony that when can become . These behaviors occur when he is frustrated. Ms. explained that should be taught on an instructional level and not on his frustration level. She opined that these behaviors should not occur. However, the evidence from providers and those who have worked that they do in fact occur. There is no dispute that the team was aware of these behaviors.
Ms. testified that they went over the modifications had made, during the meeting, and she opined that there were no behaviors that could not be addressed by the program (Tr. 48) I find that this reasoning is insufficient to address individual needs. There are no goals or modifications or techniques that are discussed on the IEP. There was testimony from the recommended placement that they use positive reinforcement however there is nothing specified in the IEP.
I find that the failure to address in the IEP including the failure to establish any goals or modifications is a denial of FAPE.
The parents allege that the lack of toileting goals result in a denial of FAPE. Ms. explained are not included because they are programmatic in a public school. (Tr. 39) The teacher and and four paraprofessionals would take evidence establishes that was and continues to be a concern for I find that the IEP does not individual needs in this area. I find that the lack of toilet goals on the IEP is a denial of a FAPE.
The parent argues that the IEP does not specify the nursing treatment that may require. There was no evidence submitted to the team required a one to one all day nurse. (Tr. 52) The IEP provides nursing services as needed. The IEP lists under present level of performance and physical development section all . The IEP addresses his physical needs including the nebulizer treatments that he requires on a daily basis. (Exhibit Joint a) I find that the recommended school would have been able to implement the nursing treatment. I find that the IEP does adequately address .
In summary I find the failure to address and lack of goals and failure to address his behavior and provide goals and strategies is a denial of FAPE. I find that the Department failed to meet their burden under prong one.
With respect to prong two, the parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111.
Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).
The SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a Disability, Appeal No. 11-057 (SRO denied tuition because the private school did not provide adequate related services to meet the child's needs).
Courts consider the “totality of the circumstances” and parents “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 364-65;
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the least restrictive environment”)
provided with teaching.(Exhibit F) In addition they provided him with all of his related services. They provided him and nursing services to address his individual needs. They designed an plan.
addressed his behavior issues through behavior management techniques that were designed for him specifically. (Tr. 105) They used methods to help with his frustration.
Ms. opined made progress (Tr. 125) He knows colors, shapes , and patterns, counts from one to ten and speaks in longer sentences. She described him as a little more engaged and more available for learning. The evidence indicated that he made progress in improving his frustration level. The evidence also indicates that he made progress in his related services. (Exhibit I)
was lacking a lot of his pre academic skills, language concepts and a lot of prereading and mathematics. They worked on them in a individualized setting (Tr. 109) Ms. Schiff opined that he made gains. (Tr.110)
Ms. opined that made progress in the area of feeding and chewing Ms. described progress made. He went from to three to four words and his sentence length improved. He had a better understanding of concepts, and was able to respond to certain WH questions.
I find that provided education instruction designed to meet . I find that he did make progress in various areas. I find that is appropriate and the parent met her burden under prong two.
The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.
New York courts consider whether the parent has “failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE” and whither the parent attended IEP meetings and school vista, and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011).
The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1
(D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting).
The Department suggests that the parent may not have ever intended to place in a public school because they signed a contract prior to visiting the recommended placement. The contract does contain a clause releasing parents from payments except for a deposit up until September 15th. The parent visited the recommended placement prior to that date and could have terminated the contract. The evidence establishes that the parent always cooperated with the Department and fully participated in the meeting. I find that nothing with respect to the equities would bar the parent from relief.
The parent submitted a tax return for 2012 (Exhibit L). I find that the parent is entitled to direct funding for any amounts not yet paid to the school.
In summary, I find that the Department failed to provide a FAPE for the 2012-13 school year and did not meet their burden under prong find that the parents met their burden under prong two. I find that the unilateral selected by the parent is appropriate. I find that is entitled to reimbursement for any money paid to SCI for the 2012-13 school year and for direct funding for the remaining balance.
ORDER
The Department shall reimburse the parents for tuition paid for the 2012-13 school year for , upon proof of payment and contract.
The Department shall directly fund the remaining balance of tuition owed for the 2012-13 school year upon proof of contract and amount still owing. Dated: December 13, 2013
SHARYN FINKELSTEIN ESQ
Impartial Hearing Officer SF: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 Impartial Hearing Request April 30, 2013 4 pages B Program Description 4 pages C Removed [2] D Removed[3] E Ten Day Notice June 13, 2012 2 pages F Class Schedule December 13, 2012 1 page G s Therapy Schedule December 13, 2012 1 page H School IEP March 15, 2013 19 pages I Progress Report December 13, 2013 11 pages J Enrollment Contract July 1, 2012 2 pages K Withdrawn (Tr. 61) L Parent's 1040 Income Tax Return 3 pages M 's Program Description 2 pages N Closing Statement November 27, 2013 10 pages
DEPARTMENT OF EDUCATION
1 Removed 4
4 FNR Removed 6
5 Report April 27, 2012 2 pages7
2 This document is same as Department 1and makred Joint a 3 This deocume is same as Department 4 and marked Joint b
4 This document is same as Parent C and maked as Joint a 5 This document was submitted with 3 pages, however page 2 and 3 are the same
I eliminated the third page and notified the parties
6 This is the same as Parent Exhibit D and will be marked as Joint b
7 This document was submitted with 4 pages, however, page 3 and 4 are the same as 1 and 2
JOINT
a IEP8 May 17, 2012 19 pages b FNR June 28, 2012 2 pages
I eliminated page three and four and notified the parties
8 Parent C and District 1 were the same and marked as Joint I
Footnotes
[2] Report March 20, 2012 3 pages
[3] Classroom Report April 20, 2012 2 pages5