Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 25, 2012

November 28, 2012

January 4, 2013

March 1, 2013

Actual Record Closed Date: April 30, 2013

Hearing Officer: William J. Wall, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2012

Advocate — Parents

Parents

Principal — Parents

(via telephone)

Speech Therapist — Parents

(via telephone)

Dr. District Representative Dept. of Ed.

Teacher Assigned Dept. of Ed.

(via telephone)

Speech Pathologist Dept. of Ed.

(via telephone)

School Psychologist Dept. of Ed.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28. 2012

Advocate — Parents

Parents

Principal — Parents

(via telephone)

Speech Pathologist — Parents

(via telephone)

Dr. District Representative Dept. of Ed.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 4, 2013

Advocate — Parents

Parents

Principal — Parents

(via telephone)

Speech Therapist — Parents

(via telephone)

Occupational Therapist — Parents

(via telephone)

Dr. District Representative Dept. of Ed.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2013

Advocate — Parents

Parents

Lead Teacher — Parents

Dr. District Representative Dept. of Ed. Special Education Teacher Dept. of Ed.

PRELIMINARY MATTERS

The hearing request in this matter was received on February 6, 2012. I was appointed as the Hearing Officer on July 3, 2012. This matter took several days to hear over several months. There were delays in the hearing that were unavoidable. All hearing dates were mutually agreed upon by the parties and the Hearing Officer. References to testimony will be made by transcript page number. During the course of the hearing certain witnesses were taken out of order to accommodate their schedules or the presence of one or the other party, if necessary. In the interest of structuring this decision in a manner that is straight forward and provides clarity to the parties, the testimony, if used, will be used in connection with the subject matter of the decision and not necessarily in the chronological order in which it was heard. The dates of the hearing are all listed in the title page of this decision. All Exhibits accepted into evidence are listed at the end of this decision.

THE DISTRICT’S POSITION

This case involves a request by the parent for tuition reimbursement for unilaterally placing the student in a non-approved, non-public school for the academic year 20011/2012. The District contends that the placement was not warranted as it had provided a Free Appropriate Public Education (FAPE) for the student. The district seeks to establish that it offered FAPE by demonstrating that it developed an appropriate Individualized Educational Plan (IEP) for the student at a properly convened and staffed Committee on Special Education (CSE) review and offered him an appropriate placement where he would be able to make meaningful educational progress. Therefore the parents are not entitled to reimbursement of tuition and fees for the student’s placement at the non-approved non-public educational facility.

THE PARENTS’ POSITION

The parents contend that the student has been diagnosed as being on and has a number of .

It became clear to the parents that the school district was not responding in what they believed to be an appropriate fashion to their son’s educational needs and therefore, with proper notice, unilaterally placed him in “ ” where they believe he was able to make meaningful educational progress.

Therefore they seek reimbursement of tuition and fees paid.

The main issues presented by the Request for the Impartial Hearing are as follows. The CSE meeting of April 11, 2011 was convened by the District and all of the necessary members were present. ( EX 4. p. 2).The Request alleged there was no parent member present. However, there is a signature on the attendance record and she was identified in the District testimony. (T. p.50) The CSE team relied heavily on the observation of one of its members, the Special Education Teacher, who also acted as Chairperson of the meeting to draft the goals and Objectives and reach a recommended placement. Other Evaluations from the staff of the non-public school were not discussed or considered in developing the recommended placement. The Request alleges that the District recommended a placement for the student despite the fact that the parent maintains she told the team that the only way that her son learns and progresses is with a very intensive 1:1 ABA program.

The District failed to develop an adequate Behavior Intervention Plan (“BIP”) despite the existence of interfering behaviors.

The goals and Objectives contained in the IEP were unattainable for the student should he have to be in a program even though he was to receive extensive services

Finally, the parent requests an additional 10 hours of ABA services at home to allow the student to make progress in generalizing the material he has learned in school.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 927; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No. 09-067) there was an articulation of what an appropriate IEP should contain.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 C.F.R.§300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R.

§300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F. R. §300.320[a][4]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087)

To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067).

In this case the CSE developed an IEP on April 11, 2011 (Ex. 4). The CSE review team was comprised of the necessary personnel. Regulations require that a broad spectrum of evaluation instruments be considered in establishing a student’s educational status in preparation for the CSE Review. 8 NYCRR 200.4. Procedures for referral, evaluation, individualized education program (IEP) development, placement and review is the section that specifies the procedures to be followed. The specific regulation dealing with reevaluations is 8 NYCRR 200.4 states

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

The District began with the testimony of Ms. , a licensed Special Education teacher with the New York City Department of Education (“NYCDOE”). She is assigned as a Special Education teacher with the CSE and also chaired the CSE meeting. She also observed the student at his school in preparation for the CSE meeting for six hours. During the observation she did get into some disputes with M. , the Educational Director of the school about certain material she wished to copy. She was clearly annoyed about it during her testimony. However, she testified about her observation in detail and I found the observational part credible. However, when she described the use of the ABA practices and the relationships (or the lack thereof) among the students, she described the as non-interactive and unsocial as if this were uncommon behavior . She felt that the staff pushed the students to complete tasks even though she thought the students were uncomfortable or angry about the need to complete the task before receiving a reward. When questioned about other materials that the District had gathered for the review she focused exclusively on her observation. Her testimony about the observation did not really provide any educational or clinical information about the student and his behaviors. She did state that the committee had received certain evaluations from the school and these were available at the meeting. There was no testimony from any Department of Education member of the CSE team that they had read the reports or were relying on them in any way to develop the goals and placement of the student. Yet, it was these evaluations that were done by the educators who knew the student. No one else had ever met the student and Ms. had only observed him once.

In a discussion of the BIP, (the student’s Behavioral Intervention Plan,) which was the last page of the IEP (EX. 4 p.26), she confirmed that no formal Functional Behavior Assessment was done to prepare the plan. The plan does identify some specific maladaptive behaviors but when the strategies to effect change are described they are generalities with no reference to specific antecedents or actions of the student. The plan is clearly deficient and not useful to effect change in the student. She testified the BIP was developed at the CSE meeting and not before with the benefit of a s formal FBA.

The next witness for CSE was the school psychologist who attended the CSE meeting. Her testimony focused on the role of the school psychologist in the CSE, both in preparation for the CSE meetings and the meetings themselves. She gave a concise description of the role (Tr. 102) and made it clear she gathers information through interviews of the parent, the people who work with student and after the discussions of the strengths and weaknesses of the child’s part of the team come up with a recommendation for a program and related services for the student.

She was articulate about the timing and the type of tests that can be used in the evaluation of students. She made it clear when it is appropriate to test. She also included an explanation of when to employ the Vineland and when to use the Stanford-Benet. At the direction of the District Representative she read an excerpt from the January 24, 2011 psychological report and made it clear that it was not a description of part of a formal psychological valuation but rather a part of an informal clinical interview frequently used as part of the evaluation of autistic children.

However, her testimony did not focus on the strengths and weakness of and did not discuss any program for the student. The did testify that she and the social worker took notes of the discussion during the CSE meeting and from that information developed the BIP. She stated she did note some antecedents for the BIP but the notes were never given to the parents or made part of the meeting.

Thus, I conclude that the testimony of the DOE witnesses at the hearing did not focus on the program nor spend any time explaining why the recommendation of a special class in a special school was appropriate. Despite the objections of the parent to the recommended program and ultimately the placement no testimony was elicited from the witnesses to support the recommendations.

Thus I conclude that the hearing testimony did not establish the District’ IEP provided FAPE f or the student. It is therefore necessary to review the various evaluations available to the CSE and determine if the IEP is appropriate to provide FAPE to the student.

However, before reviewing the materials available for the CSE it must be noted that the Impartial Hearing Officer’s decision in the case of the 2010/2011 year had required the CSE to focus on certain failures with respect to evaluations during the past academic year and reevaluate the student. The District contends that it has done that reevaluation and reached the recommended program. The Hearing Officer concluded that neither party had adequate clinical evidence to determine the appropriateness of or program and thus ordered payment for the 2010/2011 school year because the District failed to meet its burden to establish the as an appropriate placement and ordered another CSE meeting take place in 2011 after appropriate clinical evaluations were made.

The clinical evidence submitted in this Hearing consists of the following documents:

1/24/11 Update (Ex.1.); 1/27/11 Vineland, (Ex. 2)

4/11/11 Classroom Observation (Ex.3) s Behavior Plan (Ex. I)

6/1/12 Education Progress Report (Ex. J) 2/12 Report (Ex.K)

5/12 Progress Report (Ex. L); 6/10/11 OT Evaluation (Ex. N)

We know that the student is a child on the with in (Ex. 1,p.1) The Psychological Update included a Review of Records, the Stanford Binet, and the Vineland II Parent/Caregiver Rating Report. He had no meaningful with the examiner. The Vineland (completed by the student’s mother) revealed he was in the low range of all domains tested. The psychologist provided an extensive description of the efforts made to administer the Stanford-Binet and concluded that that youngster and generally utilizes gestures and motions to communicate his needs... obtained a Non-Verbal IQ of 42 which is classified in the Moderately Delayed range and is ranked at the <.01 percentile. “The report concludes with the statement that “he requires a special education program and environment that is highly structured; language enriched and includes educational and therapeutic supports that will include adaptations, modifications and accommodations in addressing his daily behavioral and educational needs.”(Ex. 1, p 4) There is no specific recommendation for a particular educational program or placement.

The classroom observation, while very detailed, contained no recommendations for any educational program or placement. I recognize that it is not usual for a classroom observation to contain such a recommendation but the Classroom Observation and the Psychological Update are the only clinical reports from the DOE.

The Reach for the Documents are not clinical reports but various documents developed for Abraham to function in his school environment. The first one is a BIP which contains no educational recommendations. The Educational Progress report (Ex. J) does recommend continued one to one ABA instruction and continued supports and resources. The Speech Progress reports recommend continuation of individual speech therapy The OT evaluation also recommends extensive individual therapy.

Therefore, I conclude that the only remaining justification for the recommendation is the IEP itself if it clearly indicates a rational for the proposal rather than ABA therapy. The IEP at p. 4 quotes extensively from the . There is no indication of a rational for any program. The Social /Emotional Performance page (Ex.4.p.6) paraphrases the but contains only descriptions of management techniques that can be used individually or in a group. The IEP does not specify any program at this point in the IEP. The Goals and Objectives section of the IEP do specify activities that require participation with other students. However, there are no short term objectives which will help the student to attain the goals.

I conclude that the IEP does not serve as one designed to provide reasonable education progress for this severely disabled student. I further conclude from a review of the District’s presentation attempting to justify the placement that there is no credible testimony or evidence that indicates why the IEP combined with placement is adequate to allow the student to make reasonable educational progress. The recommended program has not been justified by any of the evidence or testimony that it is capable of offering FAPE to the student for the 2011/2012 academic year. I conclude that the DOE has failed to offer a FAPE to the student and therefore we must move on to consider the remaining two prongs of Burlington/Carter test. Prong 2 The burden to establish that the is an appropriate placement rests with the parent. The standard by which a private placement is determined to be appropriate is found in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2nd Cir. 2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C.§1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)

(holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits Id. At

130 quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch.

Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at

130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Page 365 ex rel. Knable v.

Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). 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. See M.S., 231 F.3d at 105

("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They 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." Rowley,458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d

356,364,365 (2nd Cir. 2006).

With this relatively recent articulation of the law we can now turn to the facts of the placement of the student to determine if the placement was appropriate.. The school has small classes that use the ABA methodology for student instruction. The student teacher ratio is at all times in each class. (Tr. p 174) The Educational Director testified that although the student was already in attendance for the prior year at he still had significant and in any meaningful way. The director’s testimony was candid about progress. She did testify that his aggressiveness toward other students and throwing of objects that existed at the beginning of the 2011/2012 school year was reduced by the end of the 2011/2012 school year. As a result of the success with the behaviors that were interfering with his learning, she also testified that had made some progress in receptive language. (Tr. 250-251) In addition the had developed a that was effective in helping the student to function and regain focus. In addition the Director testified that there were several individual efforts and programs developed for the student that allowed him to make progress in all three areas of concern, intellectual, social and emotional. Her testimony was supported by that of the teacher and the parent.

I find that was an appropriate unilateral placement for the 2010/2011 school year. Prong 3

Prong 3 requires that the parent participate in IEP meetings and make the student available for evaluations during the course of his instruction. The parent attended every IEP meeting in evidence. It would appear she cooperated fully with the evaluation and placement process. The Parent has met the requirements of prong 3 with respect to the need to cooperate with the District.

ORDER

As I found that the District failed to provide FAPE to the student for the school year 2011/2012 is an appropriate placement and the equities favor the parent as she cooperated with the district in the evaluations and placement, visiting the placement recommended by the District and only then rejecting it as not appropriate. Therefore his parent is to be reimbursed for the costs and tuition associated with the Reach for the that the student attended. The reimbursement is to be made upon presentation of appropriate documentation that payment was made.

Reasonable transportation costs for the student’s participation at the school are to be reimbursed.

____________________________

WILLIAM J. WALL, ESQ.

Impartial Hearing Officer

WJW: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

EXHIBIT DATE DESCRIPTION PAGES

1 1/24/11 Update 4

2 1/27/11 Vineland 1

3. 4/8/11 Classroom Observation 6

4 4/11/11 IEP 26

5 6/15/11 FNR 1

A 2/6/12 Impartial Hearing Request 4 B 4/4/11 Third Amended Finding of Facts and Decision (Partial) 8 C 8/27/11

Enrollment Contract 2 D 9/16/11 Sworn Statement of Tuition Payment 1 E Undated Mission Statement - 1 F 4/15/12 Attendance Record 1 G Undated 2011/12

Center School Calendar 2 H Undated IEP 13 I Undated s Behavior Plan 3 J 6/1/12 Education Progress Report 4 K 2/12 Report 1 L 5/12 Progress Report 4 M 6/1/11 IEP Goals 4 N 6/10/11 Evaluation 9 O 6/24/11 OTIEP Goals 5 P Winter 2011 Sensory Diet 1 Q Undated Fine Motor Activities 1 R Undated VP Master Scoring Form 2