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 17, 2012
September 19, 2012
November 13, 2012
December 14, 2012
January 10, 2013
February 7, 2013
March 4, 2013
Actual Record Closed Date: April 10, 2013
Hearing Officer: Michael Lazan, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2012
ESQ., Attorney (Via Telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19,
2012
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13,
2012
ESQ., Attorney — Student
Parents
Parents
ESQ., Attorney — DOE
School Psychologist — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14,
2012
Attorney — Student
Parents
Parents
Speech (Via Telephone) — Student
OT (Via Telephone) — Student
— DOE
Attorney — DOE
School Psychologist (Via — DOE
Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2013
Attorney — Student
Mother — Student
Father — Student
Educational Supervisor (Via — Student
Phone) — Student
Director of Lower School at — Student
(Via Phone) — Student
Director of (Via — Student
Phone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2013
Attorney — Student
Mother — Student
Father — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 4, 2013
ESQ., Attorney for Parents — Student
Parents
Parents
ESQ., Attorney for DOE — DOE
— DOE
Principal of — DOE
(Via Telephone) — DOE
— DOE
By Due Process Complaint dated July 18, 2012, the matter of Ava B. came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The matter did not resolve during the resolution period. A prehearing conference was held on August 13, 2012, to go through the issues in the case.
An amended Complaint was filed on September 17, 2013. The Amended Complaint alleges 284 claims of Free and Appropriate Public Education (FAPE) denial relating to the District’s Individualized Education Program (IEP) recommendations and placement for the 2012-2013 school year. The Complaint seeks, inter alia, tuition reimbursement for the for 2012-2013. A second resolution session followed. There was no resolution during the second resolution period.
A hearing date was scheduled for November 6, 2012. This hearing date was cancelled due to Hurricane Sandy. A hearing was conducted on November 13, 2012. Upon the application of the parent on the 3rd of December, 2012, the decision date in this matter was ordered to be reset to January 2, 2013. The parties were provided notice through email and written notice. The reason was complexity of issues. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (Impartial Hearing Officer (IHO) Exh. 1)
A hearing date was conducted on December 14, 2012. Upon the application of the parent on the 2rd of January, 2013, the decision date in this matter was ordered to be reset to February 1, 2013. The parties were provided notice through email and written notice. The reason was complexity of issues and witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 2)
A hearing date was conducted on January 10, 2013. A hearing date was scheduled for January 15, 2013, but this date was adjourned at the request of the parent because of witness availability. Upon the application of the parent on the 26th of January, 2013, the decision date in this matter was ordered to be reset to March 2, 2013. The parties were provided notice through email and written notice. The reason was complexity of issues and witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District. (IHO Exh. 3)
A hearing date was conducted on February 7, 2013. Upon the application of the parent on the 3rd of March, 2013, the decision date in this matter was ordered to be reset to April 3, 2013. The parties were provided notice through email and written notice. The reason was witness availability, complexity of the legal issues and to provide the parties an opportunity to receive the transcripts, review the extensive record, submit closing statements and provide the hearing officer with a reasonable amount of time to review the record and render a decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District. (IHO Exh. 4)
A hearing date was conducted on March 4, 2013. Upon the application of the parent on the 30th of March, 2013, the decision date in this matter was ordered to be reset to May 2, 2013. The parties were previously provided notice through email. The reason was to provide the parties an opportunity to receive the transcripts, review the extensive record, submit closing statements and provide the hearing officer with a reasonable amount of time to review the record and render a decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 5)
Briefs were received by this IHO on April 10, 2013, which is the record close date in this matter. (IHO Exhs. 6,7)
FINDINGS OF FACT
The Student is a now girl who is eligible for services as a student (Exh. 8) She has characteristics in the “lowest end of .” (Exh. 8) She performs at the in all cognitive functioning. (Exh. 8) She has communication, socialization, self-help skills and age appropriate behavior. (Exh. 8) She engages in , , . (Exh. 8) were extinguished in November, 2011. (Exh. 13) She engages in . (Exhs. 13 14)
She demonstrates average school performance skills for class participation, cooperation in class, and following directions using teacher prompts. (Exh. 8) It is difficult to bring her back to task when her attention is compromised. (Exh. 13, 14) Even with a small group activity with a Applied Behavior Analysis (ABA) prompter, the Student struggles to maintain her attention. (470)
She needs a token economy system. (Exh. 13, 14) She responds positively to a predictable learning environment with frequent repetition using a skill-based behavioral modification program. (Exh. 13, 14)
She needs the ABA methodology to work on her behaviors. (413, 483-484) The behaviors interfere with her ability to learn in any environment with any person. (413)
She needs ABA to learn new skills, with continuous interaction, positive reinforcement, redirection, and adult prompting to and on task. (Exhs. 10, 13, 14, 423,
469) The ABA is necessary to break down a skill. (423) She needs redirection and prompting from an instructor to acquire new skills and also to maintain existing ones. (467-468) A is not so much for , but for extra support in dealing with and . (518)
The parents require training and counseling to learn how to address the Student’s needs with respect to her disorder. (493-494, 631-632)
In prekindergarten year, the Student progressed in terms of language skills, transitioning between activities, peer integration with prompting. (Exh. 10, 13) She responded appropriately to authority figures and understood verbal direction, but had expressing her ideas, using grammatically correct sentences, participating in classroom discussions. (Exh. 10) She identified primary numbers and shapes, and recognized letters.
(Exh. 10) Improvement was noted in matching, sorting, puzzles, block design, preacademic skills. (Exh. 14)
Performance in group activities improved and the Student was able to sit appropriately in a small goup for 5 minutes with continual visual support and a fast rate of item presentation. (Exhs 13, 14) She can understand receptive instructions in a group. (Exh. 13)
Even with redirection, her ability to stay focused is “poor.” (Exh. 8) She requires frequent redirection and encouragement to help maintain her focus on an activity/task. (Exh. 8) She has difficulty sustaining attention and needs an adult to address this area of need. (Exh. 8)
She does not make grammatically correct sentences, needs support in responding appropriately to “wh” questions, needs support in participating in classroom discussions, needs support in working and interacting with peers and in following classroom rules. (Exh. 8) She uses a . (Exh. 8)
The Student’s October 13, 2011 Committee on Pre-School Education (CPSE) IEP constituted the District’s program for the Student for the summer of 2012. (Exh. 6; 127-
128) This IEP provides for an program in a special class. (Exh. 6) No management needs are listed on this IEP. (Exh. 6) The Student is recommended for a Maestro. (Exh.
6) The Student attended the for the 2011-2012 school year. (Exh. 20) Task variation and a fast paced presentation of materials was recommended. (Exh. 20) The Student’s at the school targeted her social interactions - . (Exh. 20) A differential reinforcement system, encouraging positive behaviors, was employed. (Exh. 20) A token economy system was recommended. (Exh. 20) Development and reinforcement or communicative replacements and alternatives was recommended, with a sensory diet, a daily picture schedule, a preference assessment. (Exh. 20) Data collection was recommended in terms of tantrums and self-stimulatory vocalizations. (Exh. 20) Teachers were rotated to generalize skills. (418)
An observation was conducted of the Student by of the District on February 7, 2012. (Exh. 18) At this observation, the Student was working with her own teacher, who was working further to a token economy system. (Exh. 18) The Student was making , whined, and required hand over hand instruction during this work. (Exh. 18) The observer concluded that the Student needs a “good deal of teacher support, prompts, and hand over hand when completing task.” (Exh. 18)
An IEP meeting was held on April 2, 2012, which generated an IEP. (Exhs. 7, E,
G) Thereafter, the parents sent a letter to the District contending that the IEP did not contain appropriate instruction and support, any Functional Behavior Analysis (FBA) or Behavioral Intervention Plan (BIP), ABA instruction, a transition plan, a Dynavox, toilet training goals, counseling services and goals, extended day services. (Exh. G)
An FBA was created for the Student on May 4, 2012. (Exh. 21) The FBA targets crying and other inappropriate behaviors, body tensing, non contextual vocalizations, . (Exh. 21) The FBA indicates that the Student has difficulty following rules, low frustration tolerance, and immature coping skills. (Exh. 21)The FBA indicates that the FBA and BIP should be revised upon entry to school in September, 2012. (Exh. 21)
A BIP was created for the Student on May 4, 2012. (Exh. 21) The BIP targets in the classroom. (Exh. 21) The BIP also targets inattentiveness and toileting skills. (Exh.
21) A token economy system was recommended, with a behavior chart, positive reinforcement for appropriate behavior, a crisis management paraprofessional, counseling, related services, communication devices. (Exh. 21)
A Committee on Special Education (CSE) met on May 15, 2012 including , the mother, District representative , parent member . (Exh. 8) At the review, the team had recent reports, an observation. (123, 129-133) At the meeting, there was no discussion of the paraprofessional providing academic instruction for the Student. (279) Though Ms. asked about the training of the paraprofessional, there was no information provided about the backgrounds of the paraprofessional. (481) The District representative, Ms. had never recommended a teacher for a student in her career. (216) Ms. explained the need for the Student to receive ABA instruction. (479, 483-484, 499) She described how each skills needs to be broken into the smallest component for this Student for 1) behavioral concerns; and 2) to acquire fundamental skills. (480) A assessment from when the Student old recommended a very small structured class where all of her deficits would be addressed by trained staff. (Exh. 9) The IEP dated May 15, 2012 calls for a structured learning environment with a low adult to student ratio led by a special education teacher with a crisis management paraprofessional. (Exh. 8) The program is to address various behavioral methods and techniques including the tenets of ABA. (Exh. 8) School based is recommended, with communication devices, opportunities to demonstrate knowledge in a nonverbal format, a token economy system, use of manipulatives, visual aids, teacher prompts, nonverbal cues, continuous adult monitoring for needs. (Exh. 8) It calls for reminders to use the bathroom, supervision and instruction with respect to self-help activities, and calls for a BIP. (Exh. 8) Related services include therapy, occupational therapy and counseling. (Exh. 8) A transportation paraprofessional is provided, and is provided. (Exh. 8)
Goals in the IEP relate to sensory motor processing, motor planning, feeding , math skills, attention span. (Exh. 8) Goals come from School IEP. (267)
A final notice of recommendation was sent on June 1, 2012 recommending a . (Exh. 26)
The parents viewed the placement with Dr. on June 6, 2012. (565-566, 682-683) The parents was in a group of other parents, one of whom asked if ABA was used at the school. (581) This parent was told that the school does not provide ABA to its students.
(581) The tour was given by a woman who oversees multiple schools in the district. (576) On June 15, 2012, the parents rejected the IEP and placement, alleging that the IEP contained insufficient teaching, insufficient level of services, no parent training and counseling, and inappropriate behavioral interventions and that the placement included mixed methodologies, no consultant, insufficient teaching time, paraprofessionals that were only required to have a minimum of six college credits. (Exh. L)
During the summer, the Student attended Snack and Friends, an activity center, and , a summer camp. (634)
The provides instruction from 8:45am to 4:45pm. (485) The school provides the Student with ABA instruction throughout her day. (467-469) Instructors have bechelor’s degrees and experience working with . (468) Teachers rotate every 45 minutes. (470) Ms. is the lead teacher in the classroom. (467) The school employs a . (Exh. M) For 2012-2013, the plan targeted her social interactions including a reduction in . (Exh. 20) The plan also targeted the Student’s over-reactivity to hair manipulation. (Exh. M) A differential reinforcement system, encouraging positive behaviors, was employed. (Exh. M) A token economy system was recommended. (Exh. 20) Development and reinforcement or communicative replacements and alternatives was recommended, with a sensory diet, a daily picture schedule, a preference assessment. (Exh. M) Data collection was recommended in terms of tantrums and self-stimulatory vocalizations. (Exh. M)
There are five students in the classroom. (393) The Student uses an iPad in the classroom. (404) The Student has made progress in play skills, answering questions, in behavior, responding to greetings, sitting in group, math, toileting. (Exh. M; 420-421, 428, 453) There is progress in receptive letter sounds, counting, play skills, expressive language. (420-421)
Related services are provided at the school. (255) The Student receives 5x45 speech with a ratio; 4x45 occupational therapy with a ratio; one group session of occupational therapy. (255)
Teachers at the school are either certified, are getting their Master’s degrees in Education, or have a Bachelor’s Degree. (442-446)
The School will work on behaviors by providing the Student with a token after 8 seconds of engaging in an activity and working quietly. (450-451)
There are group activities in the class, including snack and lunch, story times, science group. (431) The Student has shown improvement in group activities, but needs a lot of support to stay on task. (456) The school has not considered giving her additional time in group activities because she is not ready for it. (457)
The parents unilaterally arranged for bus transportation for the Student at a cost of $1770 for the three time periods per year. (676) The parents were concerned about the length of the trip and did not arrange with the District for transportation. (675)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii). The District also has a duty to review existing evaluation data on the child, including current classroom-based, local or State assessments, classroom based observations, and observations by teachers and related services providers. 34 CFR Sect. 300.305(a)(1)(i)(iii)
The District did not conduct any assessments here. In fact, the District witness did not remember even considering conducting an assessment here. (248) Instead, it relied on the reports from the parents’ school, evaluators and providers, suggesting that it found the reports to be thorough and well-reasoned. The IEP includes much information from these reports. However, the District then failed to credit the substance of these reports, all of which which recommend a teacher-supported ABA program and do not support the District’s program recommendation. The reports state that “ requires structured situations to learn, with continuous interaction, positive reinforcement, redirection and adult intervention in order to follow directions, and attend to tasks, play appropriately and learn new skills.” (Exhs. 13, 14) These reports were bolstered by the statements of Ms. at the CSE meeting, the Student’s teacher, who indicated that the Student needed ABA instruction by a teacher to learn. The CSE also reviewed Dr. s own observation, which discusses how the Student was managing in the classroom at . This observation focuses on the Student’s interactions with a particular teacher who was providing 1:1 teaching to the Student. Even with this 1:1 teaching, the Student had a very difficult time, as Dr. Pillmeier noted in her observation. To this IHO, the observation suggests that this Student would not progress were she to be provided with group instruction throughout the entire day. R.E., 694 F.3d at 194 (there was a clear consensus that Student required continued ABA therapy in reports); M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 251-252 (IEP failed to take into account report of physician which recommended intensive ABA instruction for kindergartner); cf. E.S. v. KatonahLewisboro Cent. Sch. Dist., 742 F. Supp.2d 417 (S.D.N.Y. 2010), aff’d, 487 Fed App’x 619 (2d Cir. 2012); (SDNY Chief Judge Preska held FAPE denial because District did not adequately consider student’s progress in private placement; Circuit affirmed, deeming Judge Preska’s decision well reasoned and thorough). The District points to a psychological assessment indicating that the Student needs a small classroom environment. However, this assessment was conducted when the Student was only two years old, and the author of this assessment was not at the CSE review to explain how this assessment could be relevant to the Student’s progress during kindergarten. This individual also did not testify at this hearing. To this IHO, it is not reasonable to credit an old assessment over the recent reports of the providers, all of whom indicated that the Student needs more support than was recommended in the IEP.
The District also points out that the Student was assigned a behavior management paraprofessional, and that the behavior management professional would be able to provide the Student with sufficient support. Caselaw indicates that where a Student’s issues are entirely behavioral in nature, a behavior management paraprofessional is appropriate and a teacher is unnecessary. See, e,g,, Application of a Child with a Disability, Appeal No. 12-034 ( case; reports from school indicated that the Student was making progress in group instruction, was “working well” within the small group, and teacher support was being faded). Here, there is evidence that the Student was being maintained with limited group instruction during the day, with teacher support. The report from the school indicate that “Ava’s ability to appropriately sit in structured group activities has drastically improved.” (Exh. 14) However, the report does not indicate that the Student learns new skills in group activities. This IHO reads the report to conclude that while the school is attempting to integrate the Student into group activities, it strongly advocates teaching her new skills through an ABA approach. Nowhere in this report is it suggested that the Student can be maintained in a group for the entire day with a aide. Indeed, even with the teacher approach, this 6 year old struggles. The report indicates that she can become perseverative during teacher instruction and that her attention is compromised so that it is difficult to bring her back to task. The District’s observation is consistent with this. It states that the Student needs a “good deal of teacher support, prompts, and hand over hand when completing task.” This is a reference to teaching, because the bulk of the observation relates to the Student’s interaction with a teacher wh used “hand over hand” instruction when teaching the Student. C.L. v. New York City Dep’t of Educ., 60 IDELR 138 (S.D.N.Y. 2013)(in case involving , none of the evidence rebutted the testimony of witnesses that, based on their extensive experience of the Student, he requires instruction to learn new skills; group work was to maintain skills). It is noted that, at the review, the CSE did not indicate that the paraprofessional would have training in working with students with autism or would have any particular credentials that would be helpful to this Student. Nor did the District did not present any witnesses from the placement to “explain and justify” how the school would have implemented the IEP and BIP. R.E., 694 F.3d at 187.
The parent also contends that the Student requires the ABA methodology. Districts are not required to put a particular methodology on the IEP. Rowley, 458 U.S. at 204. However, as stated in the comments to the 1999 IDEA regulations:
In light of the legislative history and case law, it is clear that in developing an individualized education there are circumstances in which the particular teaching methodology that will be used is an integral part of what is ‘‘individualized’’ about a student’s education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student’s IEP. For example, for a child with a learning disability who has not learned to read using traditional instructional methods, an appropriate education may require some other instructional strategy. Fed. Reg. Vol. 64, No. 48 (March 12, 1999) at 12552.
Courts have held that certain students with autism, and in particular younger students with autism, can be denied a FAPE if they have demonstrated good progress with intensive, ABA therapy and the District eliminates that therapy from the IEP. In M.H., a kindergartner was getting 35 hours of ABA therapy in preschool. There was a significant amount of evidence in the record that this program was providing the Student with educational benefit, including reports from the pre-school and a report from a physician. The Student was recommended for the very same program and the very same educational placement that was recommended here. The parents observed the placement, where it appeared that the teacher was “babysitting” the children and the school offered only minimal ABA therapy.[1] After the administrative review, the District Court found for the parents, finding that the program and placement did not provide sufficient ABA services. The Circuit affirmed, in a lengthy and meticulously detailed decision, indicating that courts should carefully consider issues relating to methodology. 685 F.3d at 252-253; accord P.K. and T.K. v. New York City Dep’t of Educ., 819 F. Supp.2d 90 (S.D.N.Y. 2011)(where kindergartner needed ABA to gain educational benefit,and District eliminated ABA services from IEP, FAPE denial resulted).
Here, the IEP does not provide even some of the teacher-led ABA instruction
that was referenced by the staff. The IEP cuts out the teacher-led ABA instruction entirely, though the IEP does indicate that the program is to include the “tenets of ABA.” However, the parents were told during the school visit that the District school would not provide ABA to its students. The District presented the principal of the school to rebut this contention, but the principal agreed that during the tour she will say to parents during tours that this “is not an ABA school.” The principal did indicate that natural environment discrete trial instruction will be provided to students if the school feels they need it. However, given the evidence here that the Student needs a significant amount of ABA instruction to learn new skills, I find that the parents understandably concluded that the placement at P.94 would not be able to provide the Student with meaningful ABA instruction. It is noted that where parents are told that IEP-mandated services will not be provided at the designated school setting during a school tour, FAPE denial can result. D.C. ex rel E.B. v. New York City Dep’t of Educ., 113 LRP 12931 (S.D.N.Y. 2013)(parental visit revealed that school would not accommodate student’s seafood allergy as per the IEP; FAPE denial found); B.R. ex rel K.O. v. New York City Dep’t of Educ., 60 IDELR 102 (S.D.N.Y. 2012)(parental visit revealed that school would not accommodate student’s OT mandate in IEP).
Parenthetically, this IHO can understand a District’s reluctance to provide individual teachers to students. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist.142 F.3d 119, 132 (2d Cir.1998) School Districts are not required to "maximize" the potential of students with disabilities. Walczak, 142 F.3d at 132. Still, given 1) credible reports of the staff that the Student needed 1:1 ABA teaching; 2) that there was no reasonably contemporary assessment to the contrary for the CSE to review; 3) that the District did not present any witness with any expertise in autism or knowledge of the child to support its case that a paraprofessional would suffice;
4) that the District’s own observation suggests that the Student needs 1:1 teacher attention; 5) that the District did not consider the possibility of providing even some 1:1 ABA teacher instruction to this Student for a portion of the school day; 6) that the District did not present a witness from the school to explain how the paraprofessional would implement the IEP; 7) that the parent’s tour group was told that the school did not provide ABA; I find that the District did not create a program that was tailored to meet the “unique needs” of this particular child. Walczak, 142 F.3d at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted).
I should note that the parent was not provided with parent training and counseling on the IEP, compounding the problems with the program and placement. R.E., 694 F.3d at 191. New York State regulations require that parent training and counseling assist parents of students in understanding the special needs of their child, provide information about child development, and help parents to acquire the necessary skiulls to support the implementation of the IEP. 8 NYCRR Sect. 200.13, 200.1(kk). These parents have testified that they would benefit from parent training and counseling. The Circuit has held that Districts are “accountable” for the failure to provide parent training and counseling the IEP. R.E., 694 F.3d at 191.
The parents also contend that the District’s summer program for 2012 was inadequate. Though the parents contend that there was no summer program offered, the Student’s October 13, 2011 CPSE IEP applies to the summer program. This IEP runs to September 22, 2012. However, this IEP also contains no teacher instruction. It also includes no academic or social/emotional management needs, there is no BIP, and there are no specific reading, math and writing levels on the document. There is no parent training and counseling on this IEP, which provides for an program in a special class. I agree with the parents that the District did not provide an appropriate summer program for 2012.
Given the above, I find that the above violations denied this Student a FAPE for 2012-2013. R.E., 694 F.3d at 191.[3]
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
It has been held that a unilateral private placement cannot be regarded as proper under the IDEA when it does not, at a minimum, provide some element of special education services in which the public school placement was deficient. G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552 (S.D.N.Y. 2010)
Here, the parental placement does provide services that meet the Student’s special education needs. In particular, the program provides the Student with individualized ABA support, which has provided the Student with an appropriate program in the past. The school employs a behavior reduction plan to address behaviors. For 2012-2013, the plan targeted her social interactions including a reduction . The plan also targeted the Student’s over-reactivity . A differential reinforcement system, encouraging positive behaviors, was employed. A token economy system was recommended. Development and reinforcement or communicative replacements and alternatives is provided, with positive reinforcement every 8 seconds to reinforce the Student’s positive behavior. There is a sensory diet, a daily picture schedule.
Related services have been provided at the program. Related services are provided at the school. (255) The Student receives 5x45 speech with a ratio; 4x45 occupational therapy with a ratio; one group session of occupational therapy. (255) Reports from the school are conscientiously written, suggesting that the program is professionally run. This IHO found witnesses to be credible. In the Student’s prekindergarten year, the Student progressed in terms of language skills, transitioning between activities, peer integration with prompting, math, letter recognition, matching, sorting, puzzles, block design, preacademic skills.
The District argues that the placement is inappropriate because it did not provide the Student . However, there is nothing in the record to indicate that this young Student, who has limited language skills and has great difficulty in attending, would benefit . I find that the school’s detailed is an appropriate intervention to address the Student’s
It is noted that parents need not show that their placement provides every possible educational service that might be necessary to maximize the student's potential. Frank G., 459 F.3d at 364-365. As the Circuit stated:
To qualify for reimbursement under the IDEA, 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.
Cf. G.R. v. New York City Department of Education, 53 IDELR 9 (S.D.N.Y. 2009)(school did not provide child with speech and language therapy, which would have been appropriate for student; reimbursement ordered; speech was only one area where the student had deficiencies); Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no speech provided by summer program, and District had recommended speech therapy; parental placement deemed appropriate).
The District also argues that the parents should not be reimbursed for the programs “ ” and “ .” The record indicates that is an after school activity center (634-
635) and that “ ” is a summer camp. (635) The record does not establish that these programs are necessary for the Student, or would provide the Student with services that would meet her special education needs. I will deny the parents’ request for reimbursement in this connection. See Application of a Student with a Disability, Appeal No. 12-086 (custodial services may not be educationally necessary).
Given the above, I find that the parental placement meets the standard in Gagliardo, and the parents prevail on the second criterion in regard to the School only.
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement 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 stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The District argues that the parents did not provide sufficient notice of their dispute with the District and did not proceed in good faith here. On the contrary, the record establishes that the parents provided the District with two letters specifically detailing their issues with the IEP and the placement. The District also argues that the parents had no genuine interest in considering a public school for the Student. However, the parent visited the proposed placement in question and actively inquired about the placement. There is no evidence that the parents made their decision prematurely. Under the circumstances, I cannot find that the parents were “disingenuous” about their interest in the placement, as the District suggests. Compare J.S. v. Scarsdale Union Free School Dist., 58 IDELR 16 (S.D.N.Y. 2011)(testimony of parent indicated that they were not seeking an educational placement; this and other factors resulted in reduction of award); A.H. v. New York City Dep’t of Educ., 652 F.Supp.2d 297 (S.D.N.Y. 2009), rev’d on other grounds, 394 Fed. Appx. 718 (2d Cir. 2010)(it was clear the parent had decided not to accept the District’s recommendation before the process was complete).
The District also contends that the parents did not present sufficient information to the District about the Student’s needs. In particular, the District contends that the parent “refused” to fill out a form that described the Student’s performance in the home setting. However, the record does not show that the failure to complete this form was in any way willful or that it had any impact on the District’s ability to write an IEP. (131132)
Accordingly, I will award the parents an award of tuition for only for the 20122013 school year.
Finally, the District also indicates that the parents should not be reimbursed for private transportation to the school. Section 4402(4)(d) of the NYS Transportation Law indicates that Districts must provide “suitable transportation” to special education students attending non-public schools within a 50 mile radius if the non-public school is “similar” to the District placement. The caselaw indicates that a “similar” school need not be identical to the District program. Application of a Child with a Disability, Appeal No. 07-073. Rather, a “similar” school for the purposes of this section need only share some characteristics with the recommended District placement. In Appeal No. 07-073, for instance, the District recommended a general education setting with consultant teacher services, a shared aide, and related services. the District recommended a general education setting with consultant teacher services, a shared aide, and related services. The parental placement was a special education school with small class size. Though the SRO denied the parental request for tuition reimbursement, he awarded transportation costs, indicating that the services, while “distinguishable,” were sufficiently similar under the statute.
As a result I find that the District should have provided the Students with transportation for the 2012-2013 school year. However, the record suggests that the parents decided to transport the Student through a private bus company and did not pursue District transportation. The District contends that the parents’ choice to contract with a private bus company to take the Student to school was unreasonable. The record shows that the parent was concerned about the length of time that the Student was on a school bus. However, I find that the record does not support the parents’ view that the District would have provided this Student with too long a trip. I agree that the parents should have pursued District transportation here, and that equities favor the District on this issue. Accordingly, I will not order reimbursement for bus transportation for the 2012-2013 school year. I will, however, order that the Student be transported on a District school bus for the remainder of the 2012-2013 school year. Dated: April 24, 2013 Corrected Date: May 7, 2013 (Corrections made to 4, 16 and 21)
________________________
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
ML:mv: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 Amended demand with fax Confirmation, 9/17/12, 27 pages B Original demand with a fax confirmation, 7/17/12, 15 pages C Findings by , 8/8/11, 16 pages D OT IEP goals by , 2011/2012, 2 pages E IEP, 4/2/12, 17 pages F Child and Adolescent Health W/D Examination Form by , 4/24/12, 1 page G Letter from Parents to , 5/1/12, 2 pages H Behavior Intervention Plan 5/4/12, 2 pages I IEP, 5/15/12, 21 pages J Final Notice of Recommendation 5/21/12, 1 page K Letter from Parents to Region 9 with fax confirmation, 5/30/12 L Letter from Parents to Region 9 with fax confirmation, 6/15/12, 3 pages M Behavior Reduction Plan by , 6/19/12, 4 pages N Letter from Parents to Region 9 with fax confirmation, 8/2/12, 2 pages O Integrated Individual Education Plan by the , 2012/2013, 27 pages P Speech and Language IEP 87 46 Goals by the , 6/12, 4 pages Q Daily Attendance Record by the , 7/8/2012, 1 page R ABLLS Assessment from the , 5/12, 3 pages S Lower School information, 12/13, 1 page T Enrollment contract, current proof of payment by the , 2012/2013, 6 pages U Invoice: , 7/2/12, 1 page V Invoice: , 8/20/12, 1 page W State Education Department Document, Use of Timeout Rooms, 5/11, 2 pages X DOE Document regarding TEACCH Methodologies, 2/7/11, 3 pages Y New York State Education Department Document, Full-Time Paraprofessionals, undated, 2 pages Z Jose P Order & Stip, 7/28/88, 18 pages AA Blank E-1 Request Form, undated, 1 page
BB ABA Methodologies from the Department of Education, 2/7/11, 3 pages CC DOE's Standard Operating W/D Procedures Manual, 2/09,78 pages DD State Education Department FBA document, 5/11, 2 pages EE District 75 Placement Office Referral Form, undated, 1 page FF State Education Department document related to Behavior Intervention Plans, 5/11, 2 pages GG District 75 Organization 88 100 Directory, 8/12, 3 pages HH OT Evaluation Report by the , 5/14/12, 6 pages II Speech and Language Progress Report by the , 6/12, 3 pages JJ Educational Progress Report by the , 6/8/12, 11 pages KK Proof of Payment for ,10/17/12, 1 Page LL Proof of Payment for ,1/14/12, 2 Pages MM Guidelines for Determining a Student With Disabilities Need for One-to-One Aide NN Private Transportation Form, 8/10/12, 1 Page OO Proof of Payment for Private Transportation, 11/14/12, 4 Pages, 11/30/12, 4 Pages 552 559 PP Speech and Language Progress Report, 12/12, 3 Pages QQ OT Evaluation Report, 12/17/12, 5 Pages
DEPARTMENT OF EDUCATION
1 Complaint, 6/28/12, 15 pages 2 Complaint, 7/5/12, 3 Written complaint, 7/17/12, 16 pages 4 Original response, 8/21/12, 4 pages 5 Amended response, 9/6/12 6 IEP, 10/13/11, 32 pages 7 IEP, 4/2/12, 15 pages 8 IEP, 5/15/12, 17 pages 9 evaluation, 1/12/10, 9 pages 10 Turning Five teacher report, 2/7/12, 3 pages 11 progress report with speech, 1/12, 3 pages
12 speech progress report, 7/11, 1 page 13 progress report, 5/7/11, 7 pages 14 progress report, 12/13/11, 10 pages 15 School occupational therapy evaluation report, 12/1/10, 14 pages 16 Health examination, 4/19/11, 2 pages 17 Health examination, 4/24/12, 1 page 18 Observation, 2/7/12, 2 pages 19 Social History Report, 1/12/12, 4 pages 20 Behavior Reduction Plan, 7/11 to 7/12,5 pages 21 FBA, 5/4/12, 4 pages 22 School Version Rating Form, 2/7/12, 5 pages 23 Assistive Technology Evaluation and Addendum, 9/28/11, 8 pages 24 Emails from Parent to , 2/8/12 through 5/15/12, 23 pages 25 Consent for Evaluation, 1/26/12, 1 page 26 Final Notice, 6/1/12, 1 page 27 Undated letter and 2/3/12 report, Parent letter with Turning Five social history update, 3 pages 28 Undated Parent letter, 5 pages 29 Response, 9/27/12, 4 pages
IMPARTIAL HEARING OFFICER
IHO Exh. 1: Timelines Notice, 1 page. IHO Exh. 2: Timelines Notice, 1 page.IHO Exh. 3: Timelines Notice, 1 page. IHO Exh. 4: Timelines Notice, 1 page. IHO Exh. 5: Timelines Notice, 1 page. IHO Exh. 6: Brief of parents, 4/9/13,30 pp. IHO Exh. 7: Brief of District, 4/9/13, 30 pp.
Footnotes
[1] In another case involving the same school setting, United States Magistrate James Francis IV expressed doubt that the placement at P.94 could provide sufficiently individualized services for a child with autism that needed ABA instruction. M.S. v. New York City Dep’t of Educ., 112 LRP 34965 (S.D.N.Y. 2010). The parent claimed that the children were “all over the place” at the school and that the teacher’s knowledge of ABA was minimal. Magistrate Francis felt constrained to defer to the State decision makers, who had decided that the program and placement was appropriate. However, Magistrate Francis indicated that the Student would not progress at the school, and would likely regress at ths school .
[2] The Student’s October 13, 2011 CPSE IEP also contains no instruction. It also includes no management needs. This IEP provides for program in a special class.
[3] I have considered the parents’ other allegations in the Complaint, and find that I need not reach them given my determinations herein. Application of a Student with a Disability, Appeal No. 09-072.