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: October 25, 2012
December 11, 2012
January 14, 2013
Record Close Date: January 24, 2013
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2012
Attorney — Student
Social Worker, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11, 2012
Attorney — Student
Parents
, LCSW, CSE
, Psychologist (via telephone) , Unit Coordinator (Retired - F Status) (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013
Attorney — Student
Parents
Director of Special Education, (via telephone) — Student
Teacher, (via telephone) — Student
Social Worker, CSE — DOE
The parents of . requested an impartial hearing on September 5, 2012, for the purpose of seeking funding for their unilateral placement of their daughter at School for the 2012-2013 school year. I was designated to hear this matter on September 6, 2012 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing commenced before me on October 25, 2012, on the issue of pendency.[1] A hearing on the merits took place on December 11, 2012 and January 15, 2013. The compliance date was extended on three occasions, due to the unavailability of witnesses and extensive testimony, with a final compliance date of February 15, 2013. (IHO Ex. I, II, III).
Background
. Her classification is not in dispute. (Tr. p. 20). She attended a bilingual (Yiddish) special education class in the public schools, during her elementary school years, year. During the 2008-2009 school year, when grade, her parents placed her at ”), a private, parochial school, where she remains to date. (Par. Ex. C 4-5). special education program during the 2010-2011 school year was the subject of a prior impartial hearing before this hearing officer in 2011. By decision dated July 27, 2011, I found that the Department of Education (“DOE”) failed to meet its burden of proving the appropriateness of the recommended program because it failed to conduct a vocational assessment; and because it failed to make a timely site offer consistent with her Individualized Education Program (“IEP”), which recommended bilingual instruction. I further found that was an appropriate placement and that no equitable considerations barred reimbursement. (Id. at 10-12; Tr. p. 4). for the 2011-2012 school year. (Tr. pp. 163-164). is a ten month program. (Tr. p. 165).
In the instant proceedings, the parents challenge the May 17, 2012 IEP, which was to be implemented on September 5, 2012. The parents claim that the IEP fails to adequately identify ’s needs; that the Committee on Special Education (“CSE”) failed to conduct a vocational assessment; that the recommended transition plan is inadequate; that the IEP goals are inadequate; that the interim placement recommendation, offering in an
Placement was inappropriate and that the CSE failed thereafter to issue a Final Notice of Recommendation. The parents also claim that the recommended program is inappropriate. (Par. Ex. B). The parents' position is that they are entitled to be reimbursed for their unilateral placement of for the 2012-2013 school year.
The Department of Education’s ("DOE") position is that it offered a Free Appropriate Public Education ("FAPE") for the 2012-2013 school year. (Tr. p. 9).
Evidence at Hearing
, a certified school psychologist, participated in s May 17, 2012, as school psychologist and district representative. The other participants were ’s mother, Rosenblatt, (her classroom provider), a general education teacher and a parent member. (DOE Ex. 1, p. 14; Tr. pp. 17, 19). The CSE recommended that be placed in a special class with a staffing ratio of with related services of (“ ”) twice per week for forty minutes in a group; Physical Therapy (“PT”), twice per week individually, for forty minutes and occupational therapy (“OT”) twice per week for forty minutes individually. Bilingual (Yiddish) instruction was recommended in all areas except for PT and OT, which were to be provided in English. (DOE Ex. 1, p. 8; Tr. pp. 20-21). The CSE felt that the recommendation of a class in a specialized high school would enable to improve her academic skills and help in her transition to adulthood. (Tr. pp. 21-22).
’s IEP includes a comprehensive description of her academic ability, as reported by her teacher. It also includes information from related services providers. The provider reported that presents with delays. It was further reported that presents with difficulty in her phonemic awareness, decoding, reading comprehension and inferencing skills. (DOE Ex. 1, p. 1).
’s IEP includes goals for improving reading comprehension (with the short-term objectives of defining words; describing similarities and contrast; naming categories and answering why and how questions; and summarizing a short story); and improving her written expression skills (with a short term objective of writing a paragraph that includes a topic sentence and at least three supporting sentences and an appropriate conclusion); [2] and improving her math skills (with goals related to money; time; multiplication and division and fractions). The IEP includes goals for improving vocabulary skills; improving gross motor skills improving endurance and postural control. (DOE Ex. 1, pp. 4-7). The IEP provides that the projected date for it to be implemented is September 5, 2012. (Id. at 1).[3]
The IEP states “If there is no provider available in this language, provide interim service in English pending availability of a bilingual provider? The CSE checked off “No” next to this question. (Id. at 13).
The IEP includes a “Coordinated Set of Transition Activities”, including enrolling in vocational education classes, volunteering in a local restaurant, office or library; and using the telephone independently. There is no indication, however, that any vocational assessment was performed, to determine ’s preferences.
On July 10, 2012, the CSE issued a “final notice of recommendation for Interim at a Special Class in a Specialized School, at (hereinafter referred to as (“ )). The notice provides for placement in a special class with related services of Therapy and Therapy. It does not recommend a bilingual paraprofessional. (DOE Ex. 5).
, a certified special education teacher, testified that she served as the unit coordinator at up until August 2012; and now works there on a part-time basis, assisting teachers. is a District special education high school for students providing a variety of special classes and inclusion classes. The teachers are certified; or are in the process of receiving their certification while they attend school. The school provides related services of and monthly parent training groups. (Tr. pp. 61-65). As of September 2012, the school would have been able to provide a bilingual (Yiddish) class with all of her related services; except that it could not provide bilingual ; so that a Related services authorization (“RSA”) would have been issued for the parent to obtain the service outside of school. (Tr. pp. 66-68). There was no bilingual Yiddish class in July. (Tr. p. 72). If she had attended during the summer, would have been placed in a monolingual class; and she may have received the services of a bilingual Yiddish paraprofessional if one was available. (Tr. p. 73).
Ms. testified that the bilingual Yiddish class has a Yiddish speaking teacher; and a Yiddish speaking paraprofessional. ’s academic skills fall within the range within the class. (Tr. pp. 68-69). Ms. testified that when bilingual Yiddish students transition from a monolingual class to the bilingual class in September, the parents are always contacted. She does not know if any such contact was made in this case. (Tr. pp. 86-87).
Mrs ., ’s mother testified that she attended the May 17, 2012 CSE review. (Tr. p. 164). She does not recall any discussion regarding a change from a community school to a specialized school, or the reason that the CSE was recommending a twelve month program. (Tr. p. 165). She agreed with the recommendation for bilingual instruction. She testified that the DOE did not perform a vocational assessment of , or any other evaluation during the 2012-2013 school year. (Tr. p. 166).
Mrs. . testified that she received the notice recommending an interim monolingual placement, and called the school on July 25, leaving a message with the parent coordinator. (Tr. p. 167). She did not receive a response all summer. On September 5, she called the school again and spoke with . She called again on September
19. (Tr. pp. 167-168). On October 18, she spoke with Ms. who gave her a tour of the school on October 21 or October 24. She was impressed with the vocational training program; but the staff had no idea where they would place , as the one bilingual classroom was already filled. Mrs. was shown a monolingual class, as that was what was recommended for . (Tr. pp. 170-171; 174).
After receiving the offer for an interim monolingual placement, Mrs. . never received a different placement notice. Nor did anyone ever contact her to tell her that a seat was available in the Yiddish class. Mrs. was also concerned that offered no opportunities for mainstreaming, as she feels benefits greatly from interaction with typical young adults. (Tr. pp. 171-172). Mrs. . testified that she was familiar with the students in the Yiddish class from a prior public school placement; that the class is primarily boys and that they exhibit which does not have. She felt that would not benefit from the placement socially. (Tr. p. 173-174).
Mrs. testified that benefits from her current placement in that she loves her work, she participates well and she is well liked. She has developed cooking skills, and Mrs. . is satisfied with her academic progress. ’s teachers are encouraging her to read more. (Tr. pp. 175-177).
, the director of special education at , testified that she is New York State certified in special education. (Tr. pp. 99-100). includes a general education school for grades through the eighth grade, with grades three through eight housed within a separate building. The special education department consists of six classes, including two classes for students who are . (Tr. p. 101). is placed in one of those classes, in the older group. The class is located in the same building as the general education classes, grades three through eight. Her class consists of eleven girls and she fits within the range of academic functioning within the class. (Tr. pp. 101-102, 111, 121-122).
A reading consultant trains the teachers in various program, and reviews goals with the teachers. (Tr. pp. 103-105). The school also has a ; and when needed, are performed and programs revised. (Tr. pp. 105-016). ’s class also has a vocational consultant who sets up the vocational programs and assists the teachers with all nonacademic issues. (Tr. p. 107). ’s main teacher, is a certified special education with bilingual certification. (Tr. p. 109, 143). She runs the class, and writes and implements IEP goals. Her focus is literacy. Another teacher, focuses on math. A third teacher, , focuses on . (Tr. pp. 109-110).
The class also includes two assistants who receive training in literacy and behavior. is instructed using a Program, which includes shared reading, reading aloud, guided reading and independent reading. (Tr. p. 112). The teachers also receive training in and other phonics programs. (Tr. p. 134). ’s math program focuses on functional math, including time, money, and computation. The students go shopping each week, working from a list of items. (Tr. pp. 114-115). Ms. trains the teachers in a writing program called “ ”, focusing on practical writing including diary entries, putting together a newsletter and rules of grammar. (Tr. p. 134). The children are taught to use Yiddish functionally, through reading flyers, street signs or advertisements in Yiddish. (Tr. pp. 115-117, 135). Ms. testified that is English dominant, but that she needs to learn Yiddish as a functional part of her life. (Tr. p. 136).
The classroom is set up like an office with cubicles, and filing drawers, as part of the vocational training program. The students share computers and file materials alphabetically. The school has a kitchen where the students learn about planning meals, food preparation and cleaning up. (Tr. pp. 118-119). The classroom also includes a store, where students sell drinks to staff members of the school. (Tr. p. 124). also assists with a third grade class, where she leads games during recess twice per week. (Tr. pp. 137-138). This is considered a prevocational skill for her, as works well with children, and could be a teacher’s assistant in a preschool or with younger children. (Tr. p. 138).
At , receives related services , twice individually and once in a group; once individually and once in a group; and , twice individually and twice in a group, and counseling once individually. The school performs its own evaluations regarding the student’s need for related services, which may not always be consistent with the student’s IEP. is provided to to help her deal with her inflexibility (Tr. pp. 125-126). is positively reinforced for being flexible.
The annual tuition at is $44,000, including related services. (Tr. p. 127; Par. Ex. H). The school day includes one-half hour per day of prayer, which is the only religious portion of the day. (Tr. pp. 127-128).The parents have paid a total of $23,000. and plan to pay the balance of $21,000 which is still outstanding. (Par. Ex. I; Tr. p. 178). Allowing for a reduction for that portion of the day which is devoted to prayer, the parents are seeking reimbursement in the amount of $41,360, after they have paid the tuition in full. (Tr. p. 184-185). They are not seeking reimbursement for a summer camp which they provided for . (Tr. p. 179).
testified that she is the classroom teacher in ’s class, which consists of students with developmental delays. Her functional daily living skills. (Tr. pp. 144-145).
The students are asked to make diary entries, relating stories they read to their own lives. is able to write down her thoughts, although her writing is not always grammatical or correctly spelled. Her . has shown recent improvement in using context clues to read words. Her reading rate has also improved. She is given books of specific interest to motivate her to want to decode words. (Tr. p. 149).
is popular because the other students appreciate her sense of humor and her maturity. She interacts with non-disabled students during school functions. (Tr. pp. 149150). has shown progress in reading comprehension, retention of math facts, writing, using money, time, oral expression, computer skills, travel training; and ADL skills. (Par. Ex. D; Tr. pp. 152-153, 160-161).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998)
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education. (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f)(3)(e)(ii).
Goals and Objectives
An IEP must include appropriate annual goals, consistent with the student’s needs and abilities, with the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. 8 NYCRR 200.4[d][2][iii]. For a student who takes a New York State alternate assessment, the IEP must also include an appropriate description of short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal.[8] NYCRR 200.4[d][2][iv].4
I find that ’s IEP goals and short-term objectives are consistent her needs and abilities, as reported by her teachers and providers. ’s IEP recommends that progress be measured by teachers and providers monthly based upon charted observations.
Transition Planning/Services 8 NYCRR § 200.4(b)(6)(viii) provides that for students aged 12 and over the assessment must include “a review of school records and teacher assessments and parent and student interviews to determine vocational skills, aptitudes and interests. There is no indication in the record that any such assessment was performed.
While the DOE presented proof that, as of September 2013, there was a bilingual class at the recommended site, this was never communicated to the parent. What was communicated to the parent was that the DOE was recommending placement in an interim monolingual class, which was inconsistent with ’s IEP. The DOE never informed the parent when a bilingual class became available. Furthermore, when the parent went to visit the site in October, the parent was shown a monolingual class, as this was what appeared in ’s placement offer, and because the bilingual class was full. For the foregoing reasons, I find that the DOE failed to meet its burden of proving that it offered the parent a school placement consistent with ’s IEP. This also constituted a denial of FAPE. Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128
S. Ct. 436 (2007).
I find that the parents satisfied their burden of proving that provides with educational instruction specially designed to meet her unique needs. ’s program includes academic instruction in a small class, functional academics and vocational training. At , she has the opportunity to practice planning and preparing meals, office skills and assisting in a class with younger children, which is her area of strength and interest. receives related services of . The record indicates that she continues to progress academically in reading comprehension, writing, using money and telling time. She has also progressed in her oral expression and social skills. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000).
The record indicates that the parents have cooperated at all times with the DOE in sharing available information, participating in meetings, viewing proposed sites, and communicating their disagreement with the CSE.
I find that the tuition charged is reasonable, taking into account the specialized nature of the instruction, and the fact that the tuition includes all of ’s related services. The parents are seeking funding for the annual cost of tuition ($44,000) less the share which represents the portion of the day devoted to prayer (one-half hour). They estimate that this represents $2,640, or six percent of the total tuition. According to my calculations, however, prayer represents 9.7 percent of the overall program (two and onehalf hours, out of a total number of hours of twenty –five and three quarters per week, calculated at $4,268).
Order
Therefore, it is hereby ordered that the DOE shall reimburse the parents $39,732.00 for ’s tuition for the 2012-2013 school year upon presentation of proof of payment thereof. Dated: February 12, 2013
_____________________________
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DL:dl
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 25, 2012
PARENT
A 10-Day Notice, 8/22/12, 2 pp. B Request for Hearing, 9/5/12, 8 pp. C Findings of Fact and Decision, 7/27/11, 15 pp.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I , dated 10/25/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 11, 2012
PARENT
D Report Card, dated 12/12, 3 pp. E Class Schedule, 2012-2013, 2 pp. F Curriculum, 2012- 2013, 6 pp. G Parents' Payment Affidavit, dated 11/5/12, 1 p. H Enrollment Contract, dated 9/3/12, 3 pp.
DEPARTMENT OF EDUCATION
1 IEP, dated 5/17/12, 15 pp. 2 Report, undated, 2 pp. 3 Classroom Observation, dated 12/6/11, 1 p. 4 Medical Letter, dated 5/14/12, 2 pp. 5 Final Notice of Recommendation, dated 7/10/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 14, 2013
PARENT
I Affidavit dated 12/21/12, 1 p.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II , dated 12/11/12, 1 p. III , dated 1/14/13, 1 p. IV Prehearing Conference Summary, 10/9/12, 1 p.
Footnotes
[1] By agreement of both parties, it was ordered that during the pendency of all due process proceedings, the Department of Education shall continue to fund , as provided in my Findings of Fact and Decision dated July 17, 2011 (Parent’s Exhibit C), which has not been appealed.
[2] s writing skills were reported to be at an early second grade level. (Tr. p. 25). The IEP includes a separate goal for improving expressive writing skills with short term goals of responding to a pen pal, revising for proper verb tenses, capitalization and punctuation; and including adjectives in written expression. (DOE Ex. 1, p. 7). The IEP also includes a goal for improving reading readiness skills, which targets such skills including identifying word endings; rhyming words and sounding out vowels and consonant blends. (DOE Ex. 1, pp. 4-5). The reading comprehension, written expression, vocabulary and reading readiness skills goals are to be measured by the speech therapist. (Id. at 4-5).
[3] ’s prior IEP recommended placement in a community school. (Tr. p. 81). It is not clear that she would be permitted to attend the recommended site in the summer of 2012. (Tr. p. 82).
[8] NYCRR 200.1(fff) defines transition services as “a coordinated set of activities for a student with a disability, designed with a result-oriented process.” These activities must be based upon “the student’s strengths, preferences and interests.” There is no indication that ’s preferences and strengths in working with children were taken into account in her transition planning. As was fifteen years old at the time of the May 17, 2012, I find that the deficiency in her vocational assessment and transition plan caused a deprivation of educational benefits and a denial of FAPE. Recommended Site The school district must identify a school which is capable of implementing the IEP. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). In addition, the parents of a child with a disability are entitled to receive an offer of a specific placement with sufficient information to enable them to make an informed decision whether to accept the offer. Application of a Child with a Disability, Appeal No. 96-30. was recommended for an alternate assessment. (DOE Ex. 1, p. 10).