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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 8, 2013
March 18, 2013
Record Close Date: April 5, 2013
Hearing Officer: Dora M. Lassinger, Esq.
CORRECTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2013
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 18, 2013
Attorney — Student
Representative (Via Telephone) — Student
Representative (Via Telephone) — Student
Parents
Parents
Attorney — DOE
Mr. and Mrs. , the parents of ., (“ ”) requested an impartial hearing on October 1, 2012, for the purpose of seeking funding for their unilateral placement of at the (hereinafter referred to “ ”) for the 2012-2013 school year. I was designated to hear this matter on October 3, 2012 pursuant to 20 U.S.C. Section 1415(f)(1). A hearing took place on January 8, 2013 and March 18, 2013. The compliance date was extended on four occasions, due to the unavailability of witnesses, and the extensive testimony and issues with a final compliance date of April 17, 2013. (IHO Ex. II, III, IV, V and VI). Due Process Complaint
The parents complained that the challenged (April 25, 2012) Individualized Education Program (“IEP”) is procedurally and substantively invalid including invalid Committee on Special Education (“CSE”) composition and goals; that the student’s needs were not appropriately described and that the recommended program (15:1 in a community school) was inappropriate because it is too large of a school setting for to function in. The parents further complained that the IEP arrived five months after the meeting; and that when the school was contacted, they were informed that there were no open seats in the grade special class at the school. (DOE Ex. 6). Evidence at Hearing is woman with a classification of . Her classification is not in dispute. (DOE Ex. 1). Ms. ., ’s mother, testified that was , and did not receive any formal education up to that time. She attended public school in New York, up until the fifth grade. She attended the for her grade years; and transferred to as a . (Tr. pp. 143146).
Dr. performed a of in November 2010, when she was in the ’s verbal abilities were consistently . Her ranged from the well to Her full scale IQ was in . ’s reading skills were at grade equivalent for letter-word identification and a grade equivalent for passage comprehension. Her performance on a written spelling test was at a grade equivalent. Her writing skills were , at the percentile. In math, her performance on written calculation was at grade equivalent. Her level of attention to tasks ranged from very range for her age group. While being ambivalent about school, she was engaged in learning; and had developed friendships. She has difficulty which may be language based but also due to cultural differences. Dr. recommended that continue her education at , where she was progress; and benefited from the individualized attention and classroom accommodations. (Par. Ex. J).
Subsequent testing was performed on August 16, 2011. Dr. , the evaluator, found that continued to have a with significant . It was recommended that she continue to be taught in an environment designed to meet the needs of children with significant . It was recommended that she be placed in a small and nurturing classroom environment that provides structure and support. Other recommended accommodations were 100% extra time for resting; a calculator on math tests; separate location for testing; a reader for standardized examinations; foreign language waiver; keyboard; reading remediation with a technique such as the Orton-Gillingham method; reading materials read aloud or on tape; instructions broken down into small sections; repetition of instructions; checking for understanding. (DOE Ex. 3).
An auditory processing evaluation was conducted on November 8, 2011. It was reported that on the most , ’s hearing was within normal limits bilaterally. (DOE Ex. 2).
On April 25, 2012, the CSE met to review ’s program. The CSE review team included Amy Levine, a classroom teacher at , both parents, , a certified school who also served as district representative, a parent member and a general education teacher. (Tr. p. 12; DOE Ex. 1, p. 13, 14). [1]
Ms. testified that the CSE reviewed the fall progress report from (DOE Ex. 4); the auditory processing evaluation (DOE Ex. 2); and the private evaluation of Dr. , provided by the parents. (DOE Ex .3)(Tr. pp. 12-13). The CSE also had the earlier 2010 evaluation. (Tr. p. 53).
The IEP incorporated the results of the June 28, 2011 psychoeducational testing and information provided by ’s teachers. (Tr. p. 16). ’s teachers reported that her reading and writing skills were at a fifth grade level that her weak decoding skills significantly impact her comprehension and that she benefits from outlining and scaffolding. ’s math skills ranged from early grade for problem solving for computation. It was reported that she is motivated and hard working; and that she loves to dance. Her teachers reported that she was doing well socially and was well-liked by her peers and gets along well in the school community. (DOE Ex. 1, pp. 1-2). As the IEP was being written, it was also displayed on a SMARTboard, so that the members of the team and parents could review it. Ms. testified that no one objected to the information contained in the IEP, as it was being written. (Tr p. 18).
The CSE determined that as her hearing was within normal limits, she no longer required Hearing Education Services. No health or physical concerns were reported. It was reported that is an excellent athlete. (DOE Ex. 1, p. 2; Tr. p. 19). ’s management needs were identified as follows: Multisensory approach to learning; FM Unit; Preferential Seating; Extra time; Graphic Organizers, Review/Repetition; Chunking and scaffolding; Calculator. (Id. at 2). No one objected to the recommended management needs. (Tr. p. 26).
’s IEP goals were developed with input from the parents and teacher. (Tr. p. 27). ’s IEP includes goals for reading fluency, reading comprehension, decoding, writing, math, and . No one objected to the goals. (Tr. pp. 27-32; DOE Ex. 1, pp.4-6).
The CSE recommended that participate in a 15;1 class in a community school, four periods per day (Math, ELA, Social Studies, Sciences). (DOE Ex. 1), This would mean that would participate in a general education environment for the remainder of the day. (Tr. p. 45). Nevertheless ’s IEP states that “academic and language deficits preclude participation in the general education curriculum at this time.” (DOE Ex. 1, p. 3).
Ms. testified that this was the least restrictive environment for , and that she would benefit from being with typically . (Tr. p. 35). Both the teacher and the parents objected to the recommendation; stating that needed a smaller class and environment to make academic progress. (Tr. p. 37). therapy (once per week) as a related service was recommended based upon information from ’s school and the parents that she was receiving the service and continued to require it. (Tr. pp. 38-39).
Although the IEP meeting was held on April 25, 2012, the IEP was not finalized until September 5, 2012, when it was placed in the Department of Education (“DOE”) network, and made available to all DOE staff. The IEP was also mailed to the parents. (Tr. pp. 40-42).[2] A final notice of recommendation, recommending at class at the High School for Arts, Imagination and Inquiry was sent to the parents on August 9, 2012. (DOE Ex. 5; Tr. p. 50). The parties stipulated that school started on September 6, 2012. (Tr. p. 48).
Ms. testified that she participated in the April, 2012 IEP meeting to plan for ’s 2012-2013 school year. (Tr. p. 109). She informed the committee that she did not agree with the recommended staffing ratio; and requested a smaller class size. (Tr. p. 147). She recalls a discussion regarding goals; but does not recall a discussion as to the criteria to determine if the goal has been achieved. Nor was there any discussion as to what would occur during the periods when was not placed in a special class. (Tr. p. 149).
Ms. did not receive the IEP until after the start of school. She noted that the envelope containing the IEP was dated September 7, 2012, and was received on or about September 11, 2012. (Tr. p. 149, 171, 178). Ms. . testified that she called the recommended site on September 19, and then called back again two times until she reached the parent coordinator. On September 24 or 25, she received a call back informing her there was no space in any class. (Tr. pp. 150, 70-171).
On June 3, 2012, the parents signed a contract enrolling at for the 2012/2013 school year, with a total tuition of $51,250. The Agreement provides that the parents will be released from the contract, without financial penalty, if they accept a placement in a public school; provided that notice of withdrawal and enrollment of the student in the public school by August 15, 2012. (Par. Ex. H). Notwithstanding the contract, a $3,000.00 Scholarship was allotted for , .reducing the total amount of the parents’ financial obligation for the 2012-2013 school year to $48,250.00 (Tr. pp. 158159; 161; Par. Ex. B). This is the amount for which they seek reimbursement. (Tr. p. 162).
On August 16, 2012, the parents wrote to the Committee on Special Education informing them that they had not yet received the IEP, and that they would not have the opportunity to visit the recommended program until the start of the school year. They stated that if they deemed the IEP and placement inappropriate, they would have remain at Winston Prep and seek reimbursement. (Par. Ex. F).
On September 25, 2012, the parents wrote to the Department of Education stating that they had just received the IEP in the mail; that they were informed by the recommended site that there was no placement available in the special class, and that they intended to continue ’s placement at and seek reimbursement. (Par. Ex. E). Ms. . testified that the parents never received a response to their letter. (Tr. p. 151).
, an English teacher and administrator at , testified that he holds a master’s degrees in English education, grades 7 to 12. (Tr. p. 82). is a student in one of the sections of which Mr is the administrator, and he sees her on a daily basis. (Tr. p. 83). He is in regular contact with her teachers. (Tr. pp. 84-85). He testified that struggles with which affects her fluency, reading comprehension, social situations and written expression. takes classes in literature (which is a double period focusing on reading and writing), math, history, science, art and music. Her classes have ten students and one teacher. The small class size allows for one-one one interaction and adjustment of her curriculum. (Tr. pp. 85-86). ’s curriculum is individualized to address (Tr. pp. 8687). The school has on staff teachers and administrators who have backgrounds in special education. (Tr. p. 88). also participates in , which consists of daily one-on –one instruction in the areas of greatest need; which in ’s case are decoding, fluency and comprehension. (Tr. p. 91).
Mr. testified that during the current school year, has made progress in fluency, decoding and reading comprehension. She has also improved in her willingness to self-advocate. (Tr. p .92). He testified that provides multisensory instruction, and other accommodations recommended in ’s IEP. (Tr. pp. 93-94, 100-101). He further testified that the school works on all of the goals in ’s IEP. (Tr. pp. 95-96). He testified that requires a smaller classroom setting (than the recommended 15:1 ratio) because she tries to maintain the image that she understands what she is reading, even when she does not. (Tr. pp. 96-97). She does not therapy; however the focus program addresses her language issues on a one-on-one basis. (Tr. p. 108).
Mr. testified that ’s math, and science teachers are certified in special education. (Tr. p. 114). Her English teacher is certified to teach literacy. (Tr. p. 116). Students are grouped based upon their skill levels and educational needs. (Tr. p. 117).
, ’s focus instructor at , testified that she has a Master’s Degree in literacy and certification as a literacy specialist. (Tr. pp. 119-121). She testified that ’s classes ranged in size from 10 to 12 students, during the current school year. (Tr. p. 123). She testified that due to ’s she should be in a class size no larger than twelve students for the entire day. (Tr. pp. 124-125, 133-134). During daily Focus sessions (of forty-five minutes four days each week, and thirty minutes on Wednesdays), Ms. works with her on . She also assists her with comprehension issues and is in regular communication with ’s teachers. (Tr pp. 127-128). During the current school year, has made progress in reading fluency, decoding, reading comprehension and in solving math problems, (Tr. p. 129).
Reviewing the April 25, 2012 IEP, Ms. testified that most of the goals have either been met or are being worked on currently. (Tr .p. 130).
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).
While I find that ’s IEP was procedurally appropriate, I find that substantively, the recommended program is inappropriate because it provides only four periods per day of support in a special education class. The most recent evaluation, upon which the CSE relied, recommended that be placed in a small and nurturing classroom environment that provides structure and support; and that she receive other accommodations including instructions broken down into small sections; repetition of instructions; and checking for understanding. There was no indication as to how this would occur in her regular education classes. While recommending only four periods per day of special education classes, the CSE stated in the IEP that ’s academic and language deficits precluded participation in the general education curriculum.
I credit Ms. that due to ’s she should be in a class size no larger than twelve students for the entire day.[3]
In addition, the DOE failed to rebut the parent’s testimony that the IEP could not be implemented at the recommended site, as there were no seats available, when the parent contacted the school on September 19, 2012. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommended program. 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 at includes specialized academic instruction in small classes, and daily one-on-one instruction and support with her focus teacher, who is a literacy specialist. The school provides multisensory instruction and other accommodations recommended in ’s IEP. The majority of ’s IEP goals have already been met; or are currently being worked on.
During the current school year, has made progress in decoding, fluency, comprehension and in math. She has also progressed in her willingness to advocate for herself. 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). 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]. Tuition reimbursement may be reduced or denied upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; See J.S. and A.G. v. Scarsdale Union Free School District, 58 IDELR 16 ()S.D.N.Y. 2011). Bettinger v. New York City Bd. of Educ., supra. Application of the BOARD OF EDUCATION, Appeal No. 08-084
The record indicates that the parents participated in the CSE review, shared their private evaluations, and otherwise cooperated with the CSE. The tuition charged by is reasonable, taking into account the specialized nature of the instruction provided. was awarded a $3,000.00 scholarship.
Order
Therefore, it is hereby ordered that the DOE shall reimburse the parent for ’s tuition at , for the 2012-2013 school year up to $48,250.00, upon presentation of proof of payment thereof. Decision Corrected Date: April 15, 2013 (Third paragraph on page9) Original Decision Rendered Date: April 10, 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
PARENT
A Attendance, 12/10/12, 1 page B Affidavit, 11/25/12, 1 page C Copies of cancelled checks, Various dates, 1 page D class schedule, Undated, 1 page E Letter to CSE, 9/25/12, 2 pages F Letter to CSE, 8/16/12, 2 pages G Email from parent, 8/13/12, 1 page H enrollment agreement, 6/3/12, 2 pg I Program Description, Undated, 4 pages J Evaluation, 11/22/10, 15 pages K Envelope, 9/7/12, 1 page
DEPARTMENT OF EDUCATION
1 IEP, 4/25/12, 13 pages 2 Auditory Processing Evaluation, 11/22/11, 6 pages 3 Evaluation, 8/16/11, 10 pages 4 Progress Report 1/25/12, 7 pages 5 Final Notice, 8/9/12, 1 page 6 Due Process Complaint, 10/1/12, 2 pages
IMPARTIAL HEARING OFFICER
1 Summary of Pre-Hearing Conference, 11/9/12, 1 page 2 Email Correspondence, 12/7/12, 3 pages 3 Second Hearing Extension, 1/8/12, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 18, 2013
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
4 Case Follow-Up Sheet, 12/22/12, 1 page 5 Case Follow-Up Sheet, 2/14/13, 1 page 6 Case Follow-Up Sheet, 3/18/13, 1 page
Footnotes
[1] Any references in the IEP to a meeting on February 13, 2012 date are erroneous, and due to the fact that the IEP meeting was originally scheduled for that date, and rescheduled at the parents’ request, due to a death in the family. (Tr. p. 15).
[2] According to the parent’s exhibit, the letter containing the IEP was postmarked September 7, 2012. (Par. Ex. K).
[3] While it is a concern that the IEP was not received by the parent until after the school year had already begun, NYCRR 200.4(e)(ii) only requires that the school district ensure that the IEP be in effect at the beginning of the school year. I credit Ms. that the IEP was made available to DOE Staff on September 5, 2012, the day before school started.