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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: June 4, 2013
June 13, 2013
June 20, 2013
July 24, 2013
Actual Record Closed Date: August 17, 2013
Hearing Officer: Elise Kestenbaum, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2013
Attorney (Via Telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013
Attorney — Student
Parents
Attorney — District
Paralegal — District
School (via telephone) — District
Site Coordinator (via telephone) — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2013
Attorney — Student
Parents
Administrator — Student
Teacher — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2013
Attorney — Student
Attorney — District
INTRODUCTION: — District
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by , the Parent (“Parent”) on behalf of , the student (“Student”),through her attorney, , Esq. from the Law Offices of , by filing a Due Process Complaint dated May 2, 2013 with the District. The District was represented by , Esq., an attorney for the Department of Education.
The Parent is alleging that her son, , was a for the 2012-13 school year and is seeking tuition for his placement at the for said year.
There were days of hearings in this matter. Hearings were conducted on June 13, June 20 and July 24, 2013. Extensions were granted in this case making the final compliance date August 28, 2013. A list of Exhibits is attached as Exhibit A. The Parent and the District submitted exhibits.
BACKGROUND
This case involved year old student. During the 2012-13 school year, attended the where the Student was placed by the Parent.
With respect to the 2012-13 school year, an Program (“ ”) was developed on February 29, 2012. Pursuant to the February 29, 2012 , the following recommendations were made:
1. , times per week for each time;
2. , per week, each time;
3. , , per week, each time;
4. , , per week, each time;
5. , , per week, each time; and
6. , , per week, each time.
The District issued a (“ ”) dated June 15, 2012 placing the child at The Parent contacted the school and was told that the placement would not be appropriate for since the program was for students from the ages of through . . The District then issued a second dated July 6, 2012. The Student was placed at . The Parent visited the school, and based on her observations and conversations, she determined that the placement was. The Parent then wrote a letter dated July 12, 2012, indicating that she planned on returning in September since she was advised that the class she saw may not be the same class in the Fall. The Parent then sent another letter on August 21, 2012 requesting a response from the District and . The Parent then visited the school in September and sent a letter to the District on September 19, 2012 the placement and advising the District that she would keep at and would seek .
The Parent entered into an . with on June 3, 2012
The Parent filed a on May 2, 2013 . I was appointed as an Impartial Hearing Officer on May 3, 2013.
POSITION OF THE PARTIES
District’s Case
The District called two witnesses, and and placed four (4) documents in evidence. .
The first witness was . He is a at the District and is assigned to ( ) . He has been there for five years and his duties include preparing for students who do not attend public school. He has a and has his permanent certification in New York State.
participated in an meeting for on February 29, 2012. . He served as the District and the . The other participants included: teacher and; Parent; parent member; .’s teacher at ; and, at. . . The documents reviewed at the meeting were the evaluation from 2011 () and a number of progress reports from ( ;), ’s previous, and .’s cumulative file. .
The first document reviewed by the was the from April 2011. . testified that received a full of on the specifically he had a of on , on , on and on . ,. These indicate significant in areas tested. . At the time of the February 29th meeting, was in the grade and the IEP that was developed was for the grade. . In reading he was functioning at a grade level and in he is working on a grade level. got this from a furnished by and discussions with , and the Parent. ; With to his , reported that he is , , however, is for his age. At the meeting, they also discussed his that resulted in and and his .
testified that the needs that are included on the IEP were as a result of a discussion with as to the types of things that should be used when . There was also a discussion at the CSE meeting regarding his and and and .
testified that the goals and objectives that were developed addressed areas of that had been identified including , , , , , and , and , and goals associated with and . The goals were developed by first identifying from the 2011 ( ) and then narrowing that into particular skill levels using the , with the help of and The goals were not written and shown to the Parent at the meeting but were developed at the meeting and committed to writing during and after the meeting They did not get any goals from before the meeting They did not have a computer or smart Board up at the meeting so that everyone could see the information being edited
At the meeting, there was a discussion of .’s classification and it was determined that it was a . . As a result of his , there was a discussion as to whether a classification of would be more , however, stated that it, even though he had significantly , there were certain areas of strength. . He stated that a prerequisite for is significant across all areas and there was an indication that some areas were not actually . In addition, stated that from discussions with the Parent and school, his was an area of strength for him. He said that “while [ ] had some , they were not at a point where you would say or ”. .
The program recommended for . was a class in a school with related services in a ratio. . is familiar with this type of placement as he had an assignment in a school in a class. . In his opinion, this class would be appropriate for because he has a so that a general education environment . He stated that the felt that the and he would require the day. They also felt that he has and that he needs a school with children than in a school. . The program recommended for was a month program due to his and to .
On cross examination, stated that he sits in on approximately meetings a week He has never met The teacher at the committee, , is a full time member of the and hasn’t been in a for years. stated that he doesn’t recall whether the Parent expressed concern about the program recommendation because he does not recall the exact meeting. recalled that had reservations about whether the program recommendation would address needs because she felt that he might need a level of teacher/student ratio to . The teacher, didn’t agree with the recommendation either.
testified that the from including the dated March 2012 and the dated November 2011 were discussed at the meeting, and although they had the , the was specifically relied upon believed that at , . has classes that were students and groupings in some of his core academics like reading, writing, and math . He stated that they did not do an observation of and do not do them for all students . They do them on some children that have depending on the other evaluations, how recent they were, etc was aware that was receiving , and at and they felt that it was important to continue them but he didn’t know how they came up with the ratio of services. . He did not know if formal evaluations were ever done . None of the related service providers participated at the meeting .
When discussing levels for math and reading, testified that at the meeting they did not differentiate instructional from independent levels. . stated that one of the secondary reasons why they didn’t believe a general education environment was appropriate for was because he was and could not for himself.
In terms of the curriculum that would be covered in ’s class, believed it would be an grade curriculum modified according to levels. . His understanding was that he would be in the classroom according to levels not with regards to . . He said that he would be grouped with students within a month range. The considered mainstreaming but did not believe it was appropriate. He stated had a lot of academic a background of ”. . testified that on the continuum there are other programs between a and a and indicated that there were programs available as well.
On redirect, stated that the came up with the related service mandate based on the input of the school, the documents, and what all members of the felt was appropriate. He does not believe there were any objections to the related service mandates at the meeting.
The next witness was He is employed at as the and oversees budgeting, scheduling, creates classes, deals with crisis situations as well as making sure that all related services are being conducted according to the mandates of the He has a dual Master’s degree in and . There is a program at and it is a school inside a regular public school. They are located within . . He stated that they have a separate dismissal and arrival system, separate bell system and use a different entrance and have separate breakfast and lunch schedules occupies the fourth and fifth floors and they use the cafeteria on the second floor and gym on the first floor. The other school uses classrooms on the fourth floor including a safe room and they have access to both floors. . There are students in and there are two middle school classes of and classes which are primarily students with . The two middle school classes are grades through . testified that because it’s ungraded, they usually have the students in one class and older students in the other, but they also take into account academic, cognitive, and social skills Therefore, there are two classes for a student who would chronologically be in grade. A student in grade would stay in the class; would probably be in the older class. The program is months and the summer session starts in July. testified that there was an and on staff over the summer. They like to have continuity with students and teachers between summer and fall, however, sometimes the same teachers do not work over the summer.
reviewed the and stated that the management needs listed on the can be implemented in the program. He also indicated that the goals can be implemented in a class at and the related service mandate can be met as well. The teachers in both classes were dual certified in and general education. stated that there is interaction between the students in his school and the high school program. They are not in classes together but they are at lunch together. They follow the core curriculum and modify it for the age range and topic and the student’s level. . stated that the core curriculum gives them the themes and what they will be working on.
On cross examination, stated that he is the site coordinator at but his duties take him to other sites as well since he oversees budgeting and scheduling for other sites. shares space with the and which has approximately and are located of the floor, and speech and counseling on the floor. . stated that he sits down with the parents before school starts to try and figure out the student’s needs and parent’s expectations and place the child in a class. They do baseline assessments for every child that comes in around the second week of school, and move the students if they are not in an appropriate classroom setting. stated that there are students in the program and approximately students from the other school who join them for lunch . They do not use textbooks for their classes but there are a lot of teacher made materials as well as books they buy with the curriculum
In the District school they use a workshop model including a mini lesson, then they are be broken up into groups at their level. . In the classes this past year, testified that they had students with the following . . He also stated that there could possibly be of the since there are different levels in the and between the students in different classes .
In reading, in the , the , and range was grade . . With respect to the class, the range of levels was more . . In terms of and , they are located in the same room on the fourth floor. . There is another room inside the room and a class is in that room. . The in the class functions as a . The are given tasks and they collaborate with the teacher. . On recross, testified that in order to be a you have to pass a test, but they are not required to have a high school diploma. . Parent’s Case The Parent called three (3) witnesses, , , and the Parent and placed fifteen (15) documents in evidence. .
The first witness for the Parent was . He has a dual Master’s degree in and and a Doctorate in . . He is certified as a teacher and also as a school with New York State. . He is the head of the . . He has served in this capacity for one year and prior to that time he was assistant head for five years and before that, he worked for the DOE. . With the DOE, he was a teacher for ten years and a for five years. .
In his current position, is involved with program and curriculum development; serves as members; and is involved with running the day to day operations and meeting with teachers, students and parents. . This is the first year there is one central location for the . . The encompasses the and includes students in grades . . It is a school for special needs students. . There are currently students and they have a staff of approximately . . The classrooms are set up so that there are two , as well as and other . . All the students at have , . . None of the classes at exceed students. .
is familiar with who is in the grade at said that there are several factors that go into grouping students in the including and or He stated “ students The groupings are made with and the teachers that work with the students. . The students are placed with the same , or students for all subjects except . . is grouped with and graders. There are school students and would be graders.
For related services, provides , and All are certified in their specialties. also has . They provide workshops, staff development and trainings that range in topic depending on the population of students they are working with at that point.
testified that this is his first year working with He works with directly for an a day at recess and lunch, he supervises his classes, and works with , his teachers and related service providers. They do at lunch and at recess. He does not do or with stated that “ ”. . He is . He , and academically he is doing about in . He gets because of so when you . Therefore, they do a lot of , etc. .
For reading, they use a and system which and . For writing, they use a system called It is a that’s done in and then . They also have including a . He monitors both ’s and and meeting with his related service providers. .
’s schedule includes a homeroom period from to am. In math, is working on . There is also a focus on . ; . One of his teachers has her Master’s degree in and is a certified teacher and the other in . There are students in the class and there are paraprofessionals, that works full time with that group. At the beginning of the year, . was at a grade level for math and has made half a year’s progress. They use and a lot of , , , etc. He stated that he believes has with his teachers, the and his scores on the and . . He also receives in a with one . They block it into the schedule to avoid . . In science, there are students in his class and they are working on . . There are different periods; one is for direct by a school and the other is a . . There is also , , and and . He needs because of his and his . .
testified that has difficulty handling independent work and requires it to be broken down into small chunks. He is also and his teachers and related service providers need to keep him on task.
The related services listed on are the services that presently receives and includes; , , speech and counseling. . They determine the frequency of related services based on the and by the staff. . receives and in one of the two gyms, one is for gross motor, one for sensory and fine motor. . Some of the equipment in the gyms includes , a , tools, exercise equipment, etc. . There is a meeting with the entire staff in attendance once a week and a team meeting where the teachers and related service providers discuss the and of the students. .
In ’s class, it primarily consists of students with and and . One child is classified as of. ’s for him since he does not for himself, is, and often follows the lead. . Although he has shown and is more times with his , this is still an area that. . The program addresses this through which and to help understand his and ask for the help he needs. . He receives this in and and also in the classrooms, where the counselors will . .
stated that has this year and it is . ;. He stated that he visited District programs through his work at the DOE and also through . He does not the placement is for of ’s with work and need because of his and . does not believe there is in a class for . He believes provides with , and his needs since it his and areas of and provides direct instruction and support in these areas. On cross examination, stated that the same students are in all of his core subjects and specials, though not necessarily in his homeroom. . He stated that he believes the functional level in math is grade. In reading, it’s more and but he thinks they are all reading on about a grade level . . In science, there is teacher and paraprofessional and the teacher has his Master’s degree in and is a certified teacher. . In reading, there is teacher and assistant teacher and have their Master’s degrees in and there is also paraprofessional . . In math, there are also teachers. When it comes to , his skills are on a grade level, however, his comprehension is . .
stated that he has and so that when . stated that he has . .
The next witness was . He has a Master’s Degree in and is currently going for his Master’s degree in . He is a teacher at and has been there for years. He began as a, was an teacher for years and has been a head teacher for years. . He is familiar with because he is his teacher as was his teacher in last year. . He described as a student who is and . . He stated that supervises him time formally and to times informally. . He also meets with ’s other teachers and communicates with his mother. .
In .’s class there are students including and adults, himself, an assistant teacher and a paraprofessional. . stated that requires groups, , , etc. He requires , , etc. He also requires the classroom to be able to , and in addition, the of his related service providers and counselors. He needs are teaching. In reading and comprehension, he needs , , , and directions . . In reading he was at a grade level at the beginning of the year. . He is now at a beginning of grade level. . In writing, he and he . . In this area, he is still working on a range of to grade skills. .
In humanities, they start off with and then for different content. In. ’s group, there are other students and is the teacher. . The group gives students a chance to and . . The students in . ’s groups are experiencing in and . In , they work on , and . . The class uses and, Reading and and the teachers use techniques to keep the students and in .
testified that is making progress this year. He is making . He is aware in the story and will with . . When they do hands-on projects, he is . . is able to . ’s through frequent , teacher made , , , etc. . His writing group is different than his reading and he is now in a group of to with as his teacher. . requires and to and since , the suggested a which has been helpful. He is now . . The students as a then into groups and use their . . benefits from teacher and and also the help of the and when . . He is still working on a content level for and graders. .
meets with the Parent times formally and communicates through e-mail and a weekly memo that is sent home. .
feels that appropriately meets. ’s needs. . He stated that “ . He’s continuing to …He’s for himself a , he feels in the things that he’s doing now. He’s …” .
On cross examination, said in he has students that are reading on a to level. . He stated that is at the , like grade, along with students. Writing and guided reading are in groups and projects start out as and then . While is teaching the , the assistant teacher and paraprofessional are checking in with the students on a basis. They are also , and to make sure each student is getting the content that’s being taught. is reading books on an level of grade. He may need support to make sure everything and . The teacher can give a grade book and know that he . The curriculum he uses is based on grade concepts or themes and and by the teacher. . The age range of students in his class is between to .
He stated that has made progress in in that he is able to . In decoding, but requires . The last witness was the Parent. She stated that is She described him as , , . . She stated that has an underlying . She stated that he underwent and his . . Therefore, she believes he also has . She stated that she started to receive early intervention services at months and then was in programs between the ages of and . . For and he went to a school called which the District sent him to . . He went to the after that, and he was in a class, which only had children. The year was wonderful; he started and with other . . The District paid for this placement. After the year, the director told the Parent that was for the school since the students needed to meet the grade standard with a amount of . Therefore, the Parent placed him at in 2008. . She stated that she had visited District programs over the years. .
The Parent attended the February meeting and stated that the signature page is an accurate reflection of who attended. . and were the representatives from. . The Parent and voiced their concern with the placement and’s need for additional support. . She testified that she first received a on June 15, 2012 and it stated that he was classified as. . She expressed her concern since there was no change in classification at the February 29th meeting. . The Parent stated that is like “ ”. He has an and computer and can . . The Parent was afraid that if he was , he would be put in a class that was .When brought to the District’s attention, they said the classification of was a typo.
When the Parent called to see the school, they told her they were not taking students age and were only taking students between the ages . . She then received a second around July 6, 2012. . She visited the school prior to July 12th and met with the summer school supervisor and she took the Parent to ’s classroom. . She indicated that the students were reading from books on a level. . She asked to speak with the teacher but was told that the teacher was only there for the summer. . She was also shown the room which was a inside a high school science classroom. . Based on her concerns, the Parent sent a letter to the on July 12. . She testified that . went to summer camp and was not at the for the summer because she couldn’t afford it. . She also indicated that she went to visit the District program again during the first week of school because she wanted to meet the teachers and see the students, since it was different than the summer program. . She met with , the site coordinator from the District. . The school was crowded and busy and there was an incident where a . . She spoke to about the curriculum, however, he couldn’t tell her the functional levels of the students. . She stated that she wasn’t sure if she looked in the classroom or went in for a moment. She was told that would be in the younger class. . She testified that there were regular in the school and the District . . Based on her second visit, she did not believe that the placement was appropriate for and she wrote another letter to the on August 21. . She did not receive a response from the District. She stated that if she was offered an appropriate placement, she would have considered it. . She had paid a down payment of but could have withdrawn until the end of October and paid for the time he attended. She signed the contract for on June 3, 2012 to secure a place for The total tuition is and includes related services. She has paid all of it to date.
The Parent testified that is doing great at . . She has seen progress in every area. First in , he is able and has become more . He has a of himself, and is . His reading and math . She said that he even did a this year and . . The Parent testified that he is making the progress because of the support at . He is able to of the school with the teacher, assistant teacher, and paraprofessional. . She also thinks the peers are and there are . The school is in its approach and it’s working the of the school is and compact and it is important for because he and there is .
The Parent indicated that formally she meets with his teachers three times a year but they are accessible every day. . She believes that is meeting his needs. .
On cross examination, the Parent stated that when she visited the class at , she wasn’t sure how many students were in the class. . She indicated that she wasn’t standing that far from the students’ desks when she was observing. . She also stated that didn’t have any specific information on the books the students were working with and wasn’t able to ask the teacher. . She said the children in the class were not particularly engaged and that even though she was only in the classroom for five minutes, she has enough knowledge to know that the material being used was on a level. .
The Parent stated that the District did not place in the School, he was unilaterally placed there and received tuition based on a due process complaint. . The Parent indicated, however, that the District funded at up until this year, but not for all of his tuition. . The Parent stated that besides the placement, she thought the information in the IEP was accurate. . She does, however, have an issue with the goals on IEPs in general and having a goal to get to when you have a . . She also clarified that the contract is only a ten month contract and she is only seeking tuition for ten months. .
FINDINGS
Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1-Appropriateness of District Program
The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F3d 165, 172 [2d Cir. 2009] Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381 [2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dept of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
A school district offers FAPE 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 Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, 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 Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citation omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. §1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dept. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see, Application of the Dept of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).
The Parents claim that the IEP developed on February 29th, 2012 contains multiple procedural and substantive errors. There is no indication in the hearing record that the CSE did not follow proper procedures in convening the meeting, nor that the CSE was invalidly composed. Both a special education teacher from the CSE and one of the Student’s teacher’s from were present, along with the other mandated members of the CSE.
With respect to the related service mandates on the February 29th IEP, the Parent asserted that the District’s mandates do not match the services that were provided by for the 2011-12 school year as set forth on the March 2012 progress report and there was no indication as to why they were changed. . With respect to the related service recommendations, did not know how they came up with the ratio of services on the IEP, and was not aware of whether any formal evaluations were done, and testified to the fact that no related service providers were at the meeting. . For the 2011-12 school year, at , was receiving counseling in a group of two, one time per week for while on the IEP he would receive counseling in a group of , one time per week for , and one time per week for . . With respect to , at , was receiving two times a week for each time, and on his IEP he was to receive one time a week for each time. . In connection with , at , received individually one time per week for and one time per week for 40 minutes in a group of two and on his IEP, he would receive one time per week in a group of for 40 minutes. . . For , at , for the 2011-12 school year, received it one time per week in a group of for 30 minutes and one time a week for 30 minutes, while on his 2012-13 IEP, he would receive in a group of , two times per week for 40 minutes. .
In connection with the goals, the Parent stated that the goals were taken from that the March 2012 progress report and were goals that was working on for the 2011-12 school year and there was no indication as to whether additional goals needed to be added for the 2012-13 school year. In addition, the Parent asserted that the goals were and to address his areas of need. . Based on a reading of the related service progress reports and the February 29th IEP, it appears that goals with the respective short term objectives and benchmarks are almost identical with respect to and with almost no changes. The District has not met its burden in showing why no changes were made in the goals, and how the CSE determined the related service mandates given that they were different than the services that was receiving at .
In addition to the foregoing, after reviewing all of the testimonial and documentary evidence, I find that the District did not recommend an appropriate placement for for the 2012-13 school year. I find that the proposed placement in a class in a District school for this student who with in almost all areas is . It is clear that he requires more individualized instruction in order to receive academic benefit. testified that the CSE felt that his were across all areas of academic functioning and that he also was and needed a school with children than in a school. . He also stated that he has and language and and skills. testified that he has , and needs and he needs and . . He also indicated that he has and is and requires . . also indicated in his class there are teachers and a for students and specifically requires that level of personalized instruction and supervision in order to get the content of what they are teaching.. In the report which stated was reviewed in preparing the IEP, it is clear that the stated that . requires a , structured academic program with a of teachers to students and instruction in reading, math, and writing and for and that and . specifically stated that he believe the IEP placement is for because of ’s and and he there is in a class for . Based on the foregoing, I believe that requires . At the February 29th IEP meeting, testified that the Parent, and all expressed . .
In terms of the specific placement at issue, . was to be placed in a class at. testified that based upon , he believed his needs could be met in the class. Although is its own school, it is housed within a school and although there are different schedules for the regular students, a percentage of the students have lunch together and the schools share floors. The students that would be in his class have a range of . There are classes for school students who would be in grades . testified that the classes are ungraded but he usually puts the students in class and the students in the other class, taking into consideration other factors. He stated that would probably be in the class. . The reading level for the class is through grade and for the class it is through grade.
It is clear from testimony that will, in essence, be a part of a school environment due to the overlap of floors with the . , a member of the CSE clearly stated that due to his and , he requires a children than a school; this would not be the case if he attended .. . In addition, there is no testimony regarding any individualized instruction . could receive to meet his needs in the classes at .
With respect to grouping for instructional purposes, state regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar needs (8 NYCRR 200.1 [ww][3][i], 200.6 [a][3], 200.6[g][2]; Application of a Child with a Disability, Appeal No. 07-068; Application of a Child with a Disability, Appeal No. 05-102). Although the regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three years (see 8 NYCRR 200.6[g][7]; Application of Bd. Of Educ., Appeal No. 06-0710; Application of a Child with a Disability, Appeal No. 01.073), and both classes exceed three years, in this case, there is no evidence in terms of which class would be in and how the class functions for a determination to be made with respect to whether the grouping is appropriate. Any other determination would be speculative. (see R.E., 694 F.3d at 195).
Based on the foregoing, I find that the hearing record does not contain information that supports the IEPs recommendation of the proposed class given ’s , , and and needs and the placement . In addition, when considering the , one must consider whether the child’s needs could be met and in this case ’s needs be met in either the class in a District school or in a class in a school which was considered by the CSE, due to the of ’s . Accordingly, I find that the District has to offer FAPE to for the 2012-13 school year.
For all of the foregoing reasons, I find that the District did not provide FAPE for , for the 2012-13 school year. Hence it is necessary to consider Prongs 2 and 3. Issue 11-Appropriateness of Parental Placement
Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the services they seek for In order to meet that burden, the Parents must show that offered an educational program designed to meet ’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. . “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 . . It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])
The Parents have met their burden in showing that was an appropriate placement for . Testimony has been provided to indicate that is a school encompassing grades through grade. The school encompasses the school. There are students and a clinical staff of approximately people. The classrooms are set up so there are teachers in a class and paraprofessionals and clinical staff to provide support. A typical class size is studnets. The students in the school are grouped according to performance and ability so they have appropriate peer groupings and instruction can be effective and targeted to the students. They are with the same students for most of their classes except they are mixed for activities and groups. They provide related services of and , , , and counseling. is mixed with and graders. There are school students so there are approximately graders. His particular class consists of students with and , and .
The class size and student to teacher ratio allows for the instruction requires. Due to his and , the teachers break down the information for into s and provides him with a , , and . His teachers and related service providers are able to teachers to students in the room. .
Most of the teachers are certified in and receive ongoing and . He receives counseling and to address his and the counselors also into the classroom to this. For and , there are gyms, for and for and to deal with his issues in this area. He receives both and in a and it is carried over to the classroom to , and his and .
In terms of progress, has and has grade level. testified that has made in that he is and and , He stated that he has , can and is . The Parent indicated that she has seen , his and his .
Based on the foregoing, it is clear that is with and he is and . Therefore, I find the Parents have met their burden in proving the appropriateness of for Issue III-Equitable Considerations The third prong of the decision requires a balancing of the equities in determining whether reimbursement should be granted.
The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their and their intent to place their child in a school at public expense at the most recent CSE meeting prior to their removal of the child from school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).
I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them. The Parent participated in the February 29th CSE meeting and provided them with all necessary and . They were in contact with the District and communicated their objections regarding ’s placement and provided appropriate notice of their unilateral placement of at . The Parent notified the District of their concerns regarding ’s placement recommendation at the th February 29 , 2012 CSE meeting . The District issued a dated June 15, 2012. . The Parent contacted the school and was told that the placement for since the program was for students from the ages of through . . The District then issued a second dated July 6, 2012. The Student was placed at . The Parent visited the school, and based on her observations and conversations, she determined that the . The Parent then wrote a letter dated July 12, 2012, indicating that she planned on returning in September since she was advised the class she saw may not be the same class in the fall. . The Parent then sent another letter on August 21, 2012 requesting a response from the District and did not receive one. . The Parent then visited the school in September and sent a letter to the District on September 19, 2012 rejecting the IEP placement and advising the District that she would keep at and would seek tuition reimbursement. .
Based upon the foregoing, I find that the District did not provide FAPE to for the 2012-13 school year, the Parent’s placement of at is appropriate and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them. Accordingly, the Parent is entitled to tuition reimbursement for the 2012-13 school year as a result of her placement of at for the 2012-13 school year.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that:
1. The District shall reimburse the Parent for the tuition (which includes the related services) for Center Grammar School for the 2012-13 school year in the amount of $ , upon proof of payment and proof of ’s attendance at Center for the 2012-13 school year ; and
2. Payment shall be made within 30 days of submission of invoices and proof of payment and proof of attendance at Center. Dated: August 26, 2013
_____________________________
ELISE B. KESTENBAUM, ESQ.
Impartial Hearing Officer EK:mv
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 Exhibits
No. Date Document Pages
A 5/2/2013 Impartial Hearing Request 3
B 5/9/2013 Due Process Response 4
C 6/15/2012 Final Notice of Recommendation 1
D 7/6/2012 Final Notice of Recommendation 1
E 6/20/2012 Parent Letter to CSE 1
F 7/12/2012 Parent Letter to CSE 3
G 8/21/2012 Parent Letter to CSE 2
H 9/19/2012 Parent Letter to CSE 3
I 6/3/2012 Center Enrollment Contract [2]
J 2012-2013 Daily Schedule 1
K 2012-2013 Attendance Details 1
L 5/7/2013 Affidavit of Payment [1]
M misc. dates Proof of Payment [3]
N undated Center School
Program Description [4]
O 6/20/2013 Center Report 22
District Exhibits
No. Date Document Pages
Footnotes
[1] 2/29/2012 IEP 14
[2] 3/2012 Center 20
[3] 4/15/2011 10
[4] 11/2011 Center 7