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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: March 1, 2013
May 3, 2013
Actual Record Closed Date: May 20, 2013
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2013
Attorney — Student
Chairperson’s Designee — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2013
Attorney — Student
Mother — Student
Father — Student
(Via Phone) — Student
(Via Phone) — Student
District Representative — DOE
Mr. and Mrs. ., the parents of ., requested an impartial hearing on November 15, 2012 seeking prospective funding for their unilateral placement of at at (hereinafter “ ”) for the 2012/2013 school year. I was designated to hear this matter on November 16, 2012 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on March 1, 2013 and May 3, 2013. The compliance date was extended on four occasions, due to the unavailability of witnesses, with a final compliance date of May 31, 2013. (IHO Ex. II, III, III, IV).
is a year old girl with a classification of . (Par. Ex. B). Her classification is not in dispute. (Par. Ex. A). She has attended for the past years. (Tr. p. 82). On May 2, 2012, when was a grade student, a evaluation was performed by ,a school , who also testified at the hearing. (DOE Ex. 2).
reported that she does ; but that she . (DOE Ex. 2, p. 1). earned a Full Scale IQ of , in the range with a point between her IQ ( ) and Her IQ ( ), indicating that she may have potential for functioning. (Id. at 4) On the of , ’s reading scores ranged from for to for . was also a ( grade equivalent). In , ’s scores were all at the second grade level. (Id. at 8). was able to use for and remain on topic, although her needed in and providing more and . (Id. at10-11). and , she was described as a , and girl whose and have been affected by her . Despite her academic struggles, has goals and wishes to be an teacher. She also demonstrated in and . It was reported that she may become in response to demands and may not always find school to be a environment. It was reported that she could benefit from positive strategies to help her manage and maintain and . (Id. at 12-13).
On May 24, 2012, the (“ ”) met to review ’s program. ,a school , a teacher who also served as the Representative1, ,a teacher who worked directly with , and ’s mother participated in the meeting. (Par. Ex B. p. 16; Tr. p. 14, 18). The team did not include a parent member. (Tr. p. 31).
Mr. is also licensed as a teacher. (Tr. p. 32).
The recommended placement in a class in a school ( ), with related services of , per week , and / per week in a . (Tr. p. 19, DOE Ex. B, pp. 8-9). Ms. did not recall any disagreement with the recommended program. (Tr. p. 20).
The May 24, 2012 IEP summarizes the results of the . (DOE Ex. B, pp. 1-2). The IEP further noted parent and teacher concerns that becomes when she encounters work that is difficult for her. ’s management needs, as described in the IEP, include a class to address her , counseling to , and to address her , a approach, and the work to units; , and feedback, frequent opport , , or of made and use of planners. ( Id. at 2-3).
Ms. testified that based upon her , needed , , and . (Tr. pp. 2123).With respect to , IEP includes goals for (identifying or with supporting details; by responding or in to open-ended questions) - words at appropriate grade level; words; by of at least with ; addition of numbers; ; or , requiring - operations; and with - number. (Id. at 4-8).
Ms. testified that had with - related to her . (Tr. p. 24). To address ’s / , ’s IEP includes goals for describing alternative ways for making choices; identifying and and developing positive strategies for those ; and demonstrating improved - by stating things she , in which she has and in which she would . (Par. Ex. B, pp. 5, 7).
The IEP also included / goals. The criteria for determining whether the goals have been achieved range from % to % accuracy. Progress was to be measured per through teacher made , , and . (Id. at 7). Ms. testified that these goals could also be addressed in . She testified that the goals were comprehensive and appropriate. (Id. at 26). She testified that she considered some of the goals following the ; and that some reflected concerns expressed by the parent and teacher, and were drafted following the meeting. (Tr. pp. 29-30).
She testified that ’s promotion criteria was to require that she meet % of the grade standard for and . (Tr. pp. 36-37; Par. Ex .B, p. 14). She testified that this was a reasonable expectation, given ’s IQ, which was in the range. She testified that while would be exposed to grade level curriculum, the curriculum would be her, given her with . (Tr. pp. 40-41).
On June 12, 2012, the DOE offered placement in a class ( ) with related services of counseling and / , as provided in her IEP, at . (Par. Ex. D).
, a certified and teacher , testified that she is employed at the recommended site as a , guiding teachers through the process, reviewing IEP’s and working directly with students. (Tr. p. 45). She testified that the school has various services including , teaching and - classes ( and ) for , and graders. The school also offers related services of and . All of the teachers and service providers are and . (Tr. p. 46). The school includes students from - to grade, with a total of approximately students at the school. (Tr. pp. 54-57).
After reviewing ’s IEP, Ms. testified that it is similar to the IEP’s of other students in the in the program. She testified that ’s IEP goals could have been implemented at the school. (Tr. pp. 47-48). She testified that within the grade class (in which would have been placed) students are , depending on their and levels, with the assistance of the in the room. (Tr. pp. 49-50).
Mrs. ., ’s mother, testified that due to her and , requires a class, where she receives a . (Tr. p. 67). She testified that sees a outside of school each week. (Tr. p. 68). [2]
Mrs. testified that she attended the May 24, 2012 IEP meeting and expressed her disagreement with the recommended program, as being to meet ’s needs. (Tr. p 69). On August 21, 2012, the parents, through their advocate, sent a letter to the rejecting the IEP as being deficient both procedurally and substantively, and stating their intent to place at and seek public funding. The letter states “A detailed letter setting forth the parents’ position is forthcoming”. (Par. Ex. E). No other letter from the parents setting forth their position appears in the record.
Mrs. . went to visit the recommended site on a Friday in September. She felt that the class, which had students and teachers, was for . In addition, the teacher was teaching the group. (Tr. p. 72). She felt that be able to keep up with the instruction. (Tr. pp. 72-73). She feels that is making progress at . (Tr. p. 81).
On August 22, 2012, the parents signed a contract enrolling at for the 2012-2013 school year, at a cost of $42,500. (Par. Ex. K). As of the hearing, the parents had made payments totaling $1,950.00 toward the tuition. (Par. Ex. L). In 2012, the parents’ adjusted gross income was $ . (Par. Ex. O). The parents are not seeking reimbursement for that portion of the tuition which constituted and study ( and hours per day). (Tr. p. 82).
Dr. , the director of , testified that he has a in and , with a specialty in . ’s class is a - class with students, a teacher and an , located within a school. The students participate in activities for - , including class trips. (Tr. pp. 8789). He testified that he was familiar with through his visits to the program and discussions with her teachers and providers. (Tr. p. 91). He described concerns about her and , which he feels necessitate a smaller than . (Tr. pp. 91-92). He testified that within her class at , she is placed with other grade students. She is for lunch and trips. (Tr. pp. 95-96). Her program consists of or students, within a building of approximately students, in grades through . He testified that she receives and per week. He testified that her counselor is , a licensed . (Tr. p. 102). During the prior school year, ’s class consisted of or students. (Tr. p. 103).
, the coordinator of the program at testified that she is a licensed teacher. (Tr. p. 105). During the current school year, ’s class consists of students, a teacher and an . Her teacher has a degree and is state certified. The assistant is a graduate. She testified that due to her and her , requires highly individualized instruction. She is taught in groups of , techniques including , , and instruction. (Tr. pp. 107-109). Ms. testified that everyone in is experiencing less than when she began . She opined that transferring to a , unfamiliar school setting would be to her health and . (Par. Ex. M). the class functions or years below grade level; and that functions years grade level. (Tr. pp. 110-111).
She testified that ’s level has risen, she is and she has made . In , she is learning , using and . She is being and the concept of . She has made progress in her . In , she is working on . She has words and words with ; however there is . For , her teacher provides of the and a , which out of the . Her has and she is able to . Her teacher uses and . (Tr. pp. 113115).
At the start of the school year, was reading on an grade level and performing math at grade level. (Tr. p. 129). At present, she is reading on a - grade level, and performing math on a grade level. (Tr. p. 137). She has improved in her , from writing a to writing a or . (Tr. pp. 136, 138). She also takes social studies and science. Her science class is working on what the is doing, but . (Tr. p. 116). has improved in her ability to , and is for her . (Tr. p. 117).
receives and at school, per week, and has shown tremendous progress in her to ask for to be , and in her ability to and . During the current school year, no longer receives at school, as was moved to an outside provider to deal with the . (Tr. pp. 118-119, 133). The outside provider has been in touch with the teacher and Mrs. . (Tr. p. 134).
In the past, would have and would need to come to Mrs. ’s office to talk; but now she is managing her level, and comes to Ms. ’s office . (Tr. p. 119). Mrs. testified that in her opinion, it is to expose to a grade curriculum; however she did not explain why this is the case. (Tr. p. 126). She has never seen a school setting. (Tr. pp. 136-137).
DOE POSITION
The DOE’s position is that its IEP and recommended class provided with a FAPE, and that the parental placement is because it does not provide or for ’s needs. (Tr. pp. 144-146).
PARENT’S POSITION
The parents’ position is that the recommended program was for due to her , that it is for her to be to a grade curriculum, as she learns on a and grade level; that is an appropriate placement and that equitable considerations support the parents’ request for reimbursement. (Tr. pp. 141-143).
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 educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).
APPROPRIATENESS OF THE RECOMMENDED PROGRAM
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services Application of a Student with a Disability, Appeal No. 11-043.
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 Free Appropriate Public Education (“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).
Although the IEP team did not include a parent member, I do not find that this caused a denial of FAPE, as the record indicates that the parent and ’s teacher actively participated in the IEP meeting. See Application of a Student with a Disability, Appeal No. 11-042.
Substantively, I find that ’s IEP is appropriate. The IEP includes a detailed description of ’s needs, based upon recent testing by Ms. , who also participated in the review. The IEP also incorporates concerns expressed by the parent and ’s teacher. The IEP provides a detailed description of ’s management needs incorporating many of the techniques which are used in ’s current placement, as described in the testimony of Mrs. . ’s IEP goals address her specific in reading, math, and language, as well as her / needs. The IEP goals include , words, - , and division, all of which is working on during the current school year.
I do not credit Mrs. ’s opinion that it is to expose to a grade curriculum, to her level. Mrs. testified that at , ’s science curriculum is aligned with the curriculum, but .
The program recommendation is consistent with ’s needs to be educated in a , - class, with the support of an additional , with related services of and . The record indicates that at the time of the review, was being educated in a class of students with a teacher and .
Furthermore, the record does not support the parents’ position that ’s needs were so that she be in a school setting. Mrs. testified that has improved in her ability to herself, and that she no longer requires . is currently educated in a class, within a school setting with students, in grades through . She participates in activities within the . Recommended Site
The school district must recommend a school which is capable of satisfying the student’s IEP requirements, See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). Ms. testified that ’s IEP could be implemented at the recommended site; and that her goals are similar to those of the other students in the program.
For all of the foregoing reasons, I find that the DOE satisfied its burden of proving that it provided with a FAPE.
ORDER
Therefore, it is hereby ordered that the parents’ claim for tuition reimbursement is denied. Dated: May 30, 2013
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
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PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A , 11/15/12 9 pp. B ,5/24/12 16 pp. C , 4/8/11 14 pp. D , 6/12/12 1 pg. E , 8/21/12 3 pp. F , undated, 1 pg. G , 3/20/12 1 pg. H Deleted - I Deleted - J 2012-13 , 1 pg. K , 2012-13 Enrollment Contract dated 8/22/12, 1 pg. L , ,
Check dated 2/4/13,[2] pp. M , 1 pg. N Undated, ,[1] pg.
DEPARTMENT OF EDUCATION
Footnotes
[2] In an undated letter, Dr. , ’s therapist since January 2012, wrote that is diagnosed with (“ ”) and , and that she is treated with and sessions with the parents and school staff. She wrote that
[1] 5/2/12, 3 pp.
[2] , 5/2/12 14 pp. O , 2012, 2 pages 80 IMPARTIAL HEARING OFFICER I , 1/2/13, 1 page II , 1/15/13, 2 pages III , 1 page IV , 3/29/13, 2 pages V , 4/29/13, 2 pages