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: January 31, 2013
March 21, 2013
April 23, 2013
Actual Record Closed Date: July 16, 2013
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2013
Esq. Attorney — Parents
Father — Parents
District Representative CSE — DOE
School Social Worker — DOE
(via telephone)
School — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2013
Esq. Attorney — Parents
Mother — Parents
District Representative CSE — DOE
Principal — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2013
Esq. Attorney — Parents
Mother — Parents
Principal — Parents
(via telephone)
District Representative CSE — DOE
INTRODUCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), The hearing was convened at the written request of the Parents by letter dated November 14, 2012. (Exhibit A)[1] A hearing was held on January 31, 2013, March 21, 2013, and April 23, 2013, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.
Throughout the course of this hearing, the parties requested extensions of the 45day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]
BACKGROUND
. The DOE’s Committee on Special Education (“CSE”) convened on April 18, 2012, to develop an Individualized Education Plan (“IEP”) for S.T. for the 2012-2013 school year. . is classified by CSE as a student with an “intellectual disability.” In the IEP created on that date, the CSE recommended placement in a Yiddish Special Class with a ratio in the District program. (Exhibit 3, p.10) The CSE also recommended the related services of individual and and . The CSE also recommended the services of a full-time paraprofessional for toileting. Additionally, the CSE recommended a program for the summer of 2012. 2 A Notice of Recommended Deferred Placement: Annual Review or Reevaluation, dated April 19, 2012, was sent to the Parents indicating that they would receive a Final Notice of Recommendation for the specific site, on or before June 15, 2012. (Exhibit 4) The Parents received a Final Notice of Recommendation designating as the school offered There was no Final Notice of Recommendation entered into the record.
By letter dated August 22, 2012, the Parents, through their attorney, notified the DOE of their disagreement with the program and placement offered to S.T. and their intention to unilaterally place ”).[3] By letter dated November 14, 2012, the Parents requested an impartial hearing. (Exhibit A) In addition to the procedural and substantive challenges to the IEP and to the program recommended, the request described the Parents’ visit to the proposed site and the basis for their position that it was “wholly inappropriate” for The request further confirmed that they had unilaterally placed and expressed their intention to seek tuition reimbursement for the period from September 2012 through June 2013.
The Parents assert that the CSE failed to provide a Free Appropriate Public Education (“FAPE”) to S.T. for the 2012-2013 school year. The Parents are seeking reimbursement from the DOE for the tuition they paid the 2012-2013 school year.
POSITIONS OF THE PARTIES
THE DISTRICT’S CASE
is a social worker for the DOE, assigned to the CSE. She primarily conducts social history assessments and classroom observations, and participates in IEP meetings. The students she is involved with are in private school placements. (Tr. 14-15) Ms. served as the case manager case for the 2012-2013 school year. As such, she determined whether an observation or testing was necessary, requested information from providers, served on the CSE at the meeting on April 18, 2012, and participated in preparing his IEP. Ms. determined that neither testing nor an observation was required at the time since testing the prior year, conducted by the DOE. At that time, was attending . Ms. is familiar with since she has observed other students at the school. (Tr. 17-20) Ms. has never met . (Tr. 43-44)
Ms. explained that , the principal , participates in all of the meetings regarding students, including the meeting The teachers from are not available to participate in the meetings. In preparation for ’s meeting, Ms. stated that, “I did inform that we needed the teacher to participate.” (Tr. 21; 63) The CSE used the psycho-educational report, reports and goals prepared by the related service providers, and the teacher assessment from classroom teacher. mother participated in the meeting by telephone. The psychologist on the CSE, , summarized the report. The information contained in the IEP was taken from report, the progress reports, and the teacher’s report. Ms. in the “ and that he appeared to be and , and he’s level.” provided information in the classroom. This included a report of his social functioning. He was reported to be a sociable youngster who interacts well with his peers. There were no social/emotional difficulties reported. (Tr. 22-25; 27) The CSE believed that, based on issues, a health paraprofessional would be necessary. (Tr. 26)
Ms. explained that, based on the testing, his cognitive functioning level, and the information provided by the school and the related service providers, would be best suited for a in a District program, along with related services and a toileting paraprofessional. It was recommended that be placed in a Yiddish classroom. In the event there was no such classroom available, the IEP indicated the requirement . be provided with a “bilingual paraprofessional.” The CSE recommended a 12-month program the summer of 2012, the CSE recommended a camp program along with related services. (Tr. 31-35)
is a bilingual Yiddish for the DOE. She currently works at a school in , where her duties include assessments and observations of the students, working with the teachers, and speaking to the parents. Ms. conducted an assessment . and, as a result, created a report dated March 12, 2012. (Tr. 86-88; Exhibit 1) Ms. described . as sweet and cooperative during assessment. She had sometimes and worked slowly. is difficult to under stand as a , as well as the fact that he does in either language: English or Yiddish. However, he was more attentive when instructed in Yiddish. On the cognitive assessment . His reading , and fell at level. (Tr. 89-91)
Ms. recommended that . continue in a “small structured setting with additional support to develop his academic, communication and motor skills.” (Exhibit 1) She explained that did not seem capable of participating in a less restrictive setting. She believes that a setting, as recommended, would be appropriate for him. He needs repetition and interpretation, but he could handle a group of twelve children. He does not need a smaller group than twelve students. Ms. also agreed that a bilingual Yiddish program was appropriate (Tr. 91-93; 101; 108)
has been the Principal of since January 3, 2012. The school is also known as . Ms. explained has a self-contained main building housing approximately 400 students. There is also an inclusion program consisting of two classes, which is housed within , located adjacent to . (Tr. 120-123) Ms Tremblay explained that, among other types of self-contained classes, there are twenty-six ; twenty-four are monolingual classes and two are bilingual classes (one Spanish and one Yiddish). The school had a bilingual Yiddish class in September 2012 which started with eleven students. (Tr. 125-126) There are four paraprofessionals in the class since three students have health paraprofessionals mandated in their IEP’s. (Tr. 162)
The 2012-2013 school year was the first year that the school had a bilingual Yiddish program. (Tr. 169-170) The teacher of the class, , is bilingual-Yiddish certified and has a master’s degree in special education. This is her first year as a teacher. (Tr. 126; 174-175) Ms. Tremblay had not but reviewed his IEP, report and readiness evaluation. Based on the IEP mandates, would have been enrolled in Ms. class for the 2012-2013 school year. Ms. explained that, during the 2011-2012 school year, she had worked with parents from Ms. s prior school, which is within the same community, because the students were finishing their time at that school and needed a class for the following year, when they would enter high school. Ms. worked with the school, the parents, and Ms. , who was then a paraprofessional, and decided to establish the class for the 2012-2013 school year. (Tr. 130-131; 170) In July of 2012, it was certain that the bilingual Yiddish program would commence in September. Parents visited the school throughout the summer. (Tr. 197) Ms. had been a classroom paraprofessional in a bilingual Yiddish class at her prior school for approximately five years. (Tr. 132) The students in the class have 12-month IEP’s and it is a 12-month program. (Tr. 155)
Ms. stated that the majority of students in the class also , and that all students are classified as intellectually disabled. There are no students in the class who are physically aggressive would also fit into the class based on his academic and social needs ’s would be met as well. (Tr. 140; 155; 193-194) All paraprofessionals in the school assist with toileting, as necessary, on a programmatic basis. (Tr. 154) Since a full-time toileting paraprofessional was mandated IEP, one would have been provided to him. (Tr. 164) She believes that the program would have needs, and that the program is appropriate for him. (Tr. 168-169)
Ms. described the curricula followed in the classroom. She also explained the school’s schedule for monthly pre- and post-assessments, as well as the summative assessments at the beginning and towards the end of the school year. (Tr. 133; 136) The students receive two periods per day in native language arts, which is Yiddish. Since Ms. is technology-oriented, the class uses iPads every day during those periods, with a preprogrammed Hebrew keyboard and their own accounts. The class also has an average of two periods of English as a Second Language (“ESL”) taught by their ESL-certified teacher. The students participate in all school activities and elective courses. The students are part of community-based learning and are on trips for many of their classes. (Tr. 134-136) In addition to the 85 iPads in the school, Smartboards are being installed in a majority of classrooms. (Tr. 160)
Students can choose to have lunch in the cafeteria with other students assigned to their lunch period (there are three lunch periods), or they can choose to participate in “quiet lunch” in a classroom. Teachers are assigned to supervise the lunch periods, whether in the cafeteria or classroom. The students make a personal choice each day as a way for the school to promote self-advocacy. Students also participate in “ breakfast.” The students in Ms class keep kosher and, therefore, their bags are prepared accordingly. (Tr. 138-139) There are four adaptive physical education teachers in the school and many physical education options. There are up to forty-eight students in the gymnasium with the four teachers. (Tr. 150; 183) There is a private yard with a new track, basketball court, and football field, which is used for recess. (Tr. 184)
Ms. follows the “workshop” model in her classroom. A portion of each academic period is taught using small group instruction. Small group instruction is important so it can be individualized to the students and so instructional grouping can be maximized. (Tr. 182)
In Ms. class, two students receive occupational therapy, one student receives physical therapy, and eleven students receive speech therapy. These services are provided in the school. Speech, occupational, and physical therapies are provided as a push-in service within the classroom by therapists assigned to service the classroom, unless the therapist needs to work on specific skills in isolation. Services are also provided outside of the classroom if mandated on an IEP. Related service providers are assigned to the classroom so they can coordinate as a team. The school has seven full-time physical therapists and three contracted therapists. The school also has nine occupational therapists and nine speech therapists. Since the school did not yet have a bilingual Yiddish speech provider, parents had the option of receiving a Related Services Authorization, allowing them to find an outside provider to provide the service at the DOE’s expense. (Tr. 152-154; 179-180; 201-202) If had attended the school, and was mandated to have speech therapy provided by a bilingual Yiddish provider, an RSA would be issued and the service could be provided outside of school or within the school, if that worked for the provider. (Tr. 163)
There are many activities offered to the students in the program. There is a program called ,” with , which allows a student to commit to walking on the school’s track two to three days per week and tracking their miles throughout the school year. There are separate male and female “Youth Empowerment Programs” through “Hip-Hop for Life” available to the students. As for vocational opportunities, the school has a retail quad which does printing jobs, including brochures, photocopies, and pads. In addition, the students can work in the corner store. There is a culinary quad, with a kosher corner, for students to make purchases. There is a very active student council. There are monthly social events for families and students. On Fridays, there is a club period, during which students participate in a variety of clubs, including a circus club, music clubs, arts and crafts club, nail polish club, drum club and a trumpet club. There is also a school chorus and a drama program. There is a swim program in conjunction with Brooklyn Tech. (Tr. 156-159)
Ms. explained how safety is handled at the school. There is a school-wide positive behavior program called “Code of Conduct.” The program was collaboratively created by students, parents, and the school community. There is a dean and a peer mediator involved in the program. In addition, the school has a therapeutic crisis intervention trainer from Cornell. There are monthly school safety team meetings. There are two school safety agents, as well as support, if needed, through the school’s partnership with . There is a walkie-talkie system used throughout the school for immediate access. If there is a need for the team to respond to a situation or behavior, there is observation, data collection, and the development of a functional behavioral assessment. Then, a determination is made as to whether a behavioral intervention plan is warranted. Four guidance counselors are also involved with safety and behavioral issues. (Tr. 127-129) The school also uses ,” a school-wide intervention system, to capture behavioral data. It is used to make sure that the school is providing appropriate services. The philosophy of the school is that everyone is part of a community. (Tr. 142)
Ms. explained that the “whole building is life skills.” The school is an occupational training center preparing the students every moment. From the time the students are on the bus in the morning, learning appropriate bus behavior, and having their Grab and Go breakfast, they are taught responsibility. They have their own lockers and have to transition from class to class appropriately. The school wants to ensure that students are prepared to be in the community. (Tr. 150) The school’s community-based activities allow the students to learn skills in an authentic manner. For example, if they go grocery shopping, they create a budget and a shopping list. The students are very mobile using public transportation. The students also participate in many community service programs, from food drives to recycling. (Tr. 159-160)
Ms. described the professional development provided at the school. (Tr. 130) She also explained how the school handles the students’ transition from elementary school to high school. (Tr. 167-168)
THE PARENTS’ CASE
4
is the Principal He has worked in special education for twelve years and at for ten years. Prior to serving in the position of Principal for the last two years, he worked as a teacher at the school. testified that he holds masters degrees in general education, special education, and bilingual Yiddish, and has New York State certification in all three areas. (Tr. 221-222)
is responsible for evaluating new students, creating the curriculum for each class, and individualizing the curriculum for each student. He also provides evaluations three times per year for all students. He is also responsible for handling “every problem conducted his evaluation as a new student and has conducted all of his evaluations since then. speaks with ’s teacher several times per day and is constantly in the classroom observing the students and teachers and discussing the students. (Tr. 224-225) He supervises classroom teacher. (Tr. 237)
described special education needs. difficulties. He has . He has articulation issues and is unable to express his needs properly. He also lacks conversation skills. At the beginning of the 2012-2013 school year, . would shut down in new situations or activities and would put his head down in his hands without expressing himself. described ’s strengths as being a charming child who is eager to learn, wants to follow directions, loves to please teachers and loves to follow along. (Tr. 226-227) .’s current reading level is between the end of kindergarten and the beginning of first grade level. did not place a grade level .’s math skills and explained that his ability varies among different areas of math. (Tr. 234- 236)
There are twenty-seven students currently attending the school. is a ten-month program. The majority of students are children with . The students are divided into three classes based on “grade appropriateness.” There are three smaller groups within each
Although he is referred to as “Rabbi,” he is not an ordained rabbi. (Tr. 257) classroom for academic periods. (Tr. 222; 225; 291-292) S.T.’s teacher for the 20122013 school year is Isaac Frankel. Mr. is currently working on his bachelors degree. He has worked for three years as a teacher, following three years as an assistant teacher. (Tr. 225-226) The class has ten students, one teacher, and one assistant teacher. The assistant teacher holds no degrees. The students in the class range from ages eleven to fourteen. The students’ reading and math levels range from kindergarten to second grade. For the core academic subjects, the students are split into three smaller groups. The teacher works with one group, the assistant teacher works with another group, and the remaining group works on a computer program, created for special education students in which each student has their own program and continues work from the previous day. Students are unable to move on to the next topic or to the next level unless the information taught has been learned. The three groups rotate so they all receive individualized attention. Subjects related to Activities of Daily Living (“ADL”), such as hygiene, safety, and social skills, are taught in the larger group. (Tr. 229-232) S.T. is at school from 8:45 a.m. until 5:00 p.m. on Monday, Tuesday, Wednesday and Thursday. The educational day starts at 9:00 a.m. Lunch is from 12:30 p.m. to 1:00 p.m. On Friday, the day is from 8:45 a.m. until 12:00 p.m. On Sunday, the day is from 9:30 a.m. until 2:30 p.m. (Tr. 228-229)
is housed within a regular . The building has a total of one hundred fifty students. operates on the same schedule as the general education program so that all students enter the building at the same time through the same entrance. The students are integrated for lunch and gym. (Tr. 248-249; 281) has a pre-vocational program for younger students which involves reviewing scenarios that occur in the workplace, and then a vocational program which includes in-house and off-site opportunities. explained that he basically follows the curriculum of . (Tr. 250-251)
receives the related services mandated in the IEP He has progressed with his speech, physical, and occupational therapy needs. . progressed with regard to his toileting needs and he no longer requires much assistance in that area. If he needs any help, it is provided by the assistant teacher. (Tr. 247; 252-255 stated that ’s need for a toileting paraprofessional did not come up at the CSE meeting. (Tr. 271) The class addresses during a period . The students work on brushing their teeth, washing their hands, keeping themselves clean, eating, and taking a shower. This subject involves a lot of role playing. (Tr. 236-237)
participated by telephone in the CSE meeting of April 18, 2012. He spoke and related service providers prior to the meeting. He gathered all of the information to provide the CSE with a full picture of believes that it is appropriate for one person to gather all of the information and share the information with the CSE. Teachers only participate in CSE meetings when is unavailable. completed a “Readiness” report and provided it to the CSE in advance of the meeting. He completes this report for every child at the beginning, middle, and end of the year. (Tr. 228; 238-240; Exhibit 4) The report was discussed at the meeting. (Tr. 241) At the time of the CSE meeting, which was during the 2011-2012 school year was attending and placed in a class of seven students, with one teacher and one assistant teacher. He was “functioning well.” In the 2011-2012 school year, presented with some . Those issues were addressed, and, by the time the CSE met, they had improved. (Tr. 241-243) believes that is appropriately placed for the 2012-2013 school year and that he has made academic progress. (Tr. 233; 250) is not involved in finances . (Tr. 294)
.’s mother. She explained that . He also has of an , which is pulmonary . and progressed well with the help of . Through the Committee on Special Education, pre-school. Then, attended for six years in a bilingual Yiddish program with twelve students. (Tr. 312-313)
Ms that after three years in the same classroom, with the same teacher and the same curriculum, and without much progress, the CSE recommended that he continue in that program for a fourth year. Other children were moving on to different programs but since the age of eleven, beginning in 2009. The 2012-2013 school year is fourth year at . (Tr. 315)
Ms. described ’s most significant special education needs as articulation, reading and math. Socially, Ms. described as a very
Ms. participated by telephone in the CSE meeting on April 18, 2012. The CSE .’s progress towards his goals and current academic functioning. provided an update regarding ’s academic functioning. The CSE reviewed the psycho-educational report prepared by Ms .’s related services were discussed at the meeting. Ms. did not voice any disagreements or concerns regarding the recommendations made by the CSE at the meeting although she does not recall any concrete recommendations. (Tr. 317-321) Ms. . confirmed that she received a placement notice in June indicating the School. She called the number on the letter to schedule an appointment and was asked to visit during the summer session. Ms visited the school on July 13, 2012. She did not feel it was appropriate . Ms. . was taken by the unit coordinator to classroom that was supposed to be engaged in math at the time. Ms. observed several students sitting at their desks with their backs towards the teacher . A couple of students were stringing beads with the help of staff members. Although Ms. . requested to see another classroom, she was told that was not possible, but she was assured that this class was representative of the classes. Ms. . was told that the class could consist of students with all different types of developmental levels and needs. Ms. was also told that, although they may be opening a bilingual Yiddish class, they would not have bilingual Yiddish speech therapy available The coordinator could not tell Ms. . who the teacher would be .’s class. Ms. . also visited the lunchroom which was a huge room. There are four hundred seventy-five students in the school and two lunch periods. Ms. determined that the large number of children in the school, the large scale of the activities, and the loud noise level, would not provide an environment in . does his best. Ms. . stated that, following her visit, she wrote to the CSE expressing her concerns, and did not receive a response. (Tr. 322-328) Ms. . signed a contract for . to attend for the 2012-2013 school year on August 20, 2012. (Tr. 330; Exhibit B)
During the summer of 2012, , an approved 6-week program recommended by the DOE. Ms. T. was not clear as to how the program was funded, whether by the DOE or by the Parents. (Tr. 328-329)
Ms. . stated that, “Since has made slow but steady progress.” (Tr. 331) Ms. described some of the progress she has observed, in various areas, while at Specific to the 2012-2013 school year, Ms. . stated that . had recently initiated independent reading after school. (Tr. 331-332) In addition, during the 2012-2013 school year, articulation has improved and he requires fewer prompts. (Tr. 334) Ms. . confirmed that received his related . (Tr. 336) Ms. has also observed progress in ’s ability to identify money, and progress in his penmanship, math skills, and reading skills. (Tr. 347-348)
Ms. believes that is appropriate to meet special education needs. Ms. T. has made unannounced visits to the classroom and has observed the students broken into small clusters receiving individualized attention focused on their needs. Ms. T. can see that . is completing the work and it is not being done for him. (Tr. 334-335) Ms. T. stated that the religious portion of the program is simply a component of the program. She explained that the Parents’ focus is that, “We maximize his potential so I think he can integrate fully in the community as best as he can and he has a productive life.” (Tr. 335-336)
Ms. . testified that the tuition for the 2012-2013 school year is $50,000, including the related services. At the time of her testimony, on April 23, 2013, the Parents’ had paid approximately $4,000 towards the tuition. It is the Parents’ intention to pay the tuition in full by the end of the school year. (Tr. 337; 365) They have “certain loans lined up in order to be able to make that payment.” (Tr. 356) The Parents’ income for 2012 was approximately $180,000. (Tr. 361)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
The DOE has established that the program and placement offered to S.T. for the 2012-2013 school year was appropriate.
The CSE properly reviewed and considered the recent psycho-educational report prepared by Ms. , along with the “Readiness” document presented by YBL as a teacher’s report. The CSE also had progress reports and input from Rabbi Horowitz and the Parents. The information contained in the IEP, and the goals created for the 20122013 school year, were reasonably calculated to provide a meaningful education for S.T. Ms. ’s testimony established that the CSE process and the manner in which the IEP was created were proper. Both and Ms. confirmed that ’s current levels of performance, special education needs, and goals, were discussed at the meeting.
It should be noted that the “teacher report” relied upon by the CSE was actually a report prepared by Mr. There was no name on the report to indicate the author of the document. It appears that provided the document to the CSE without clarifying that it was not created by a classroom teacher. The fact that participates in the CSE meetings for students attending and will not make arrangements for teachers to participate, is potentially detrimental to the process. However, the fact that he prepares a document that purports to be a teacher’s report, rather than having it created or completed by the classroom teacher, who provides direct instruction and makes daily observations of is absurd.
The testimony, cited herein, persuasively established that the recommended program and placement would be appropriate for for many reasons. The testimony of Ms. further supports the DOE’s position.
The DOE’s recommended program and placement was appropriate to meet S.T.’s individual special education needs. The IEP, the program recommendation, and the placement offered, were reasonably calculated to make meaningful educational progress in the least restrictive environment. Although I have found that the DOE’s program is appropriate, and that the DOE offered a FAPE to ., I now address the appropriateness of the Parents’ program. The Parents have the burden of establishing the appropriateness of the program they have provided to S.T. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])
I find that, while the program implemented by the Parents provided with a small class and a school environment to address his special education needs, the setting was highly restrictive. At the time the CSE made its recommendation for the 2012-2013 school year, the record of ’s evaluations and the reports of those who worked directly with him, did not support a program and placement as restrictive as the one in which he was placed for the 2012-2013 school year by the Parents. While the ratio ten students, one teacher, and one assistant teacher, might be appropriate for ., a school of twentyseven students is still too restrictive, despite the opportunities for interacting with mainstream students from the general education program within is housed.
teaches the last subject of the day, “current events,” he does not provide regular direct instruction to However, it is who is evaluating three times per year. There was no testimony regarding any evaluations or assessments conducted by the classroom teacher. Since the teacher did not participate in the CSE meeting or the impartial hearing, there is no evidence of performance, progress, needs, strategies used or teaching methods employed; as experienced, observed, and assessed by the classroom teacher. According to the record, the principal of the school is the only person who measures abilities, skill levels, and the progress Perhaps the teacher’s experience is different from what is reflected in the “Readiness” document. However, there is no mechanism by which the teacher would have the opportunity to document educational experience. Usually, it is the teacher who is deemed the appropriate individual to evaluate a student in all academic and social areas. testified that the classroom teacher has no input into the completion of the “Readiness” report. (Tr. 241)
Perhaps the teacher is not charged with the responsibility to evaluate performance, or measure his progress, or implement strategies to address his special education needs; and this is all done by , because Mr. is not even a college graduate. He is the “head teacher” of a self-contained special education class and does not have a college degree. (Tr. 304-305) While and Ms. . describe progress made during the 2012-2013 school year, the evidence is not persuasive that such progress is a result of the program in which he was placed. Regardless of the progress observed, the program, as presented, with a non-degreed “head teacher” who simply implements a curriculum created by , with no evaluation or assessment, except as conducted , is not appropriate. The fact that , as the principal, has multiple degrees and certifications, does not make up for the lack of qualifications of the classroom staff.
The fact that the Parents’ placement is overly restrictive would not necessarily render the program inappropriate. The Parents are not held to the same standard in their unilateral placement as the DOE is. However, the overly restrictive environment, plus the absence of any qualified professionals in the classroom, the absence of any means for teacher assessments or evaluations, the unusual practice of the principal conducting all evaluations, and the absence of testimony or evidence in the record of the day-to-day strategies, methods, and tools implemented by the classroom teacher to support the individualized instruction the placement inappropriate. If I had found that the DOE had not offered a FAPE to for the 2012-2013 school year, I would find that the Parents’ unilateral placement was still not appropriate.
The final criterion for an award of funding or reimbursement that would be considered if the DOE had failed to offer a FAPE, and if the Parents’ unilateral placement was deemed appropriate, is whether the Parents’ claim is supported by equitable considerations. Again, although I have found that the DOE’s program and placement were appropriate, I will address the issue of equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
The DOE did not offer any equitable consideration that would preclude an order in favor of the Parents. The record reflects the Parents’ cooperation. During this process, the Parents participated in the CSE meeting, as requested, and visited the proposed placement. It should be noted that, although Ms. T. testified that she had sent a letter to the CSE following her visit to the on July 14, 2012, such correspondence was not offered as part of the record. Had there been a finding in favor of the Parents, equitable considerations would not serve to bar or diminish an award of reimbursement.
ORDER
The Parents’ request is denied. Dated: July 29, 2013
_______________________
AMY LYNNE ITZLA, ESQ.
Impartial Hearing Officer ALI;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
DOE’s Exhibits
Exhibit Date Description Pages
1 3/12/12 Psycho-educational Report 3
2 3/28/12 Appointment Letter 2
3 4/18/12 IEP 16
4 4/19/12 Notice of Recommended Deferred
Placement 1 5 1/25/12 Readiness 9 Parents’ Exhibits Exhibit Date Description Pages A 11/14/12 Request for Impartial Hearing 6 B 8/20/12 Enrollment Contract 3 C 2012-2013 Class Schedule 1 D 1/21/13 Progress Report 10 E 1/21/13 Occupational Therapy
Report 1 F 1/24/13
Therapy Report 1
Footnotes
[1] The DOE’s exhibits are numbered. The Parents’ exhibits are lettered. There was no request made regarding ’s program or placement for the summer of 2012.
[3] This letter was not presented at the hearing. However, there was no dispute over the existence of the letter.