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DECISION
Case Number Student’s Name Date of Birth
District Hearing Requested By Parent Pre Hearing April 15, 2013 May 7, 2013 Date of Hearing May 9, 2013 May 13, 2013 May 14, 2013 June 17, 2013 July 12, 2013
Record Close August 22, 2013 Hearing Officer Sharyn Finkelstein
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of for the 2012- 2013 school year. The parent Ms , [1] [2]filed a due process complaint against the City School District of (“District”)(Exhibit 48) [3] The case had initially been appointed to another hearing officer who recused themselves from the proceedings. I accepted the case on April 9, 2013 and informed the parties of my appointment and I scheduled and held a pre-hearing conference on April 15, 2013. I scheduled several hearing dates which parties had believed at that time would be sufficient to complete the case. I held another pre hearing on May 7 because prior to the initial hearing date it became clear that there were issues surrounding disclosure. [4] The District was represented by their attorney Ms. The parent appeared pro se. [5] This is one of the several attempts to explain to the parent what was required and to ensure that she understood what to expect and what she needed to provide. [6] Ms. and Ms. reached an understanding of what she would bring to the hearing. Hearings were held on May 9, May 13, and May 14. I held another telephone conference on June 10, after receiving transcripts of the first three hearings because I was concerned that in spite of my explaining it several times on the record, that Ms.
did not understand the focus of the hearing. Hearings were held on continued on June 17 and July 12.
The parties moved to extend the compliance date on various occasions in light of anticipated testimony and availability of witnesses. On the first day of hearing the Ms. advised that she was unable to attend on one of the scheduled hearing dates.(Tr. 13) We then chose another date to replace that date. Ms. sent me an email stating that she could not make the scheduled date of June 17 because of proceedings. We agreed to schedule the time of the hearing later in the day in order to accommodate her schedule. The parties also requested the final extensions in order to receive the transcript of the July 12 hearing and for an opportunity to prepare written memorandum and to allow me the time to read their briefs and write a decision. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint requests for extension of the compliance dates were granted. The parties each submitted closing statements which I received by email. I received written copies in the mail on August 22, 2013 and the record was closed.
A list of evidence and parties in attendance on the various hearing dates are appended to the decision.
BACKGROUND
is a ten year old student who is classified as . He had attended a program in called when he was 17 months old. Ms. described the program for children that are significantly delayed. He was given and a . (Tr. 39) There were people coming to the house providing services three times a week until he was three. He received pre k services in a year round program from three to four years old.
Ms. had him tested in the second grade and moved to . Prior to starting at , had attended the School District and had a special education program. (Tr. 40) She had been considering sending to , a private special education school located in . (Tr. 61) had been wait listed at the School at that time. (Tr. 41)
Ms. had contacted Mrs. , the Director of Special Education, in with respect to transportation and had expressed concerns about 's reading development. Mrs. described the supports that could be available in the public schools. (Tr. 60) She advised Ms. that they did implement Orton-Gillingham program as a technique. Several of the staff members follow the Preventing Academic Failure (“PAF”) and the Basic Writing by Hochman, which are two programs that are followed at the School. (Tr. 62) Ms. visited the school and enrolled at the School during the week that school was starting (Tr. 69) attended the School for entire third grade which is the focus the parent's complaint.
's parents unilaterally placed at the School for the 2012-13 school year. On March 13, 2012 Ms. filed for due process review and tuition reimbursement for placement at for the 2012-13 school year. The parent withdrew that part of the complaint without prejudice at the encouragement of the Impartial Hearing Officer because the request was premature. (Tr. 31)
The CSE met on May 3rd and continued on July 20, 2012 to develop a program for for the 2012-13 school year. Ms. disagreed with the recommendation. The parent brings this request for tuition reimbursement for the School for the 2012-13 school year. (Exhibit IHO 48) [7]
DISTRICT'S POSITION
The District was represented by their attorney Ms. . They maintain that they offered a free, appropriate, public education for the 2012-13 school year. (“FAPE”) They argue that the Department was responsive to all of the parent concerns and in particular any allegations of “bullying” were investigated and taken very seriously. They maintain that made progress during the 2011-12 school year. They argue that is not an appropriate placement. They maintain that the equities do not support the parent. In summary, it is their position that tuition reimbursement should be denied in its entirety. (Tr. (Tr. 30-39)
PARENT'S POSITION
Ms. maintains that right from the beginning, the School did not implement what they had agreed to. They adopted the IEP from without a meeting and did not follow the program. (Tr. 43-44) She maintains that was grouped with student on a higher level in reading.
With respect to the equities she maintains that they ignored her repeated requests. She maintains that did not get any help in math and they were not willing to modify his work. (Tr. 46) She maintains that did not get the resource room that was offered at a CSE meeting. It is her position that did not make progress during the 2011-12 school year. She argues that was physically bullied on several occasions. (Tr. 50) and that the school did not provide support. (Tr. 51) She argues that she could not consider enrolling for the 2012-13 school year based on experience in the 2012-12 school year. She maintains that School is appropriate and is making progress. (Tr. 54)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dept of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).
One of the main purposes 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]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which 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 Child with a Disability, Appeal 6No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).
The SRO and the Courts have ruled that the IDEA does not specify any particular level of educational benefit that must be provided by the recommended program. Rowley, 458 U.S. At 197 n.21; see also, Grim v Rhineback Cent. School Dist., 346 F.3d 377, 379 (2003); Walzak, 142 F.3d at 132. In other words, the law only requires the District to provide an appropriate education,” not one that provides everything that might be thought desirable by loving parents” Tucker v. Bay Shore Union Free Sch. Dist, 873 F.2d 563, 567 (2d Cir. 1989). Therefore a District meets its obligation under IDEA if it provides “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. At 203.
The CSE has an obligation to involve petitioner meaningfully in the IEP development process. Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a Disability, Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F. Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a Disability, Appeal No. 02-015. This obligation includes providing the parents with written notification within five days prior to the meeting to ensure they have an opportunity to be included in the development of their child's IEP. NYCRR §200.5.(c)(1).
School Districts, not Parents are ultimately responsible for selecting instructors, programs and teaching methodologies. L.K. And A.K. v. Department of Education of the City of New York 2010 U.S. District LEXIS 139638 (EDNY 2010); Application of a Child with a Disability , Appeal No. 07-0504 (July 11, 2007)
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204.
At the outside there are several issues that need to be addressed. The parent focused largely on the District's failure to provide a FAPE for the 2011-12 school year. After repeated attempts by me to ensure that she understood the requirements for tuition the 2012-13 school year, she did address substantive issues with the 2012-13 IEP. However, the basis of the complaint is to show that the District failed to provide a FAPE for the 2011-12 school year and that made no progress. What she attempts to establish is based on the 2011-12 school year, she could not keep in the District for another year. She asserts that they are offering the same program for the 2012-13 school year which proved to be unsuccessful. Under these circumstances, I will address the 2011-12 school year in addition to the May and July meeting for the 2012-13 school year.
Ms. promptly provided previous evaluations and an existing IEP from . (Tr. 68) The team reviewed s needs and an interim program was established. (Tr. 68) The Interim program consisted of integrated co-teaching transition class and one time weekly 30 minutes. The parent agreed to the interim program as close to the IEP as possible. (Tr. 68) There was some agreement for changes based upon the services in School. (Tr. 69) The parents gave consent for the Interim Special Education Program Placement. (Exhibit 1 page 14) Both parent signed the consent on September 13 and also acknowledged receipt of due process statement.
MS. has been the Director of Special and Alternative Education for The City School District of for the past twenty two years. (Tr. 57) She collaboratively supervises the teachers along with Ms. with respect to the elementary school. (Tr. 59) She explained that an interim plan is to provide an interim program similar to the previous program until the District can conduct a Committee on Special Education (CSE) meeting. (Tr. 70) (Tr. 158) had not moved into the District within 30 or 60 days prior to the start of the school term. They are required to implement the plan from the prior School District as close as appropriately possible. (Tr. 70) Changes can be made to the program if the parent and the School District agree that a particular support or service that had not be available in the previous District is available or something has changed, then with parental consent the plan in developed (Tr. 70) (Tr. 73)
Ms. points out that the IEP provided with 1 to 1 reading with a special education in a private therapy room to be delivered 5 times weekly for 30 minutes each time and in a group in a private therapy room once a week for thirty minutes and integrated Co-Teaching. (Exhibit P A1-1) She argues that because the district did not follow the IEP as written was denied FAPE. There is no requirement for a District to follow the exact IEP that the student was given from a prior school. There is no requirement that the District has to deliver the services in exactly the same manner as the prior school. An interim plan by definition is just a plan to be utilized until additional testing is conducted and the CSE of the new school meet and develops their own IEP. What is required is that the parents know what the interim plan involves. I find that in this case both parents gave permission for the interim special education program (Tr. 72, 2 Exhibit D 1 page 14)
The CSE met in October for the purpose of reviewing, planning and continuing to make changes and develop an IEP for The parents attended the meeting. The team had a report, health history, prior IEP, summary as well as a comprehensive evaluation that had been completed in April 2011, while was still attending . (Tr. 74) The CSE added resource room into the program. (Exhibit D10) Parents requested push in support during math instruction and was provided with 90 minutes daily of PAF instruction. The team believed that the addition of the resource room would directly address his need for development in math. (Tr. 104)
The team met again on January 13, 2012 for a program review in response to parents' concerns about s reading and lack of self esteem. (Tr. 129) The parents had hired a tutor from . (Tr. 128) They requested new educational evaluations. It was decided that Ms. , s Resource Room teacher would provide an additional two hours a week of support. This was outside of the CSE recommendations to address some of parents concerns. (Exhibit D 26) was added to the IEP, to be given in a small group once a week. The parents declined the . (Exhibit D 23; Tr. 128-132)
Ms. argues that she was denied the right to participate in the IEPs. The facts not only suggest that she, 's father and 's maternal grandmother who herself was an educator were given every opportunity to participate but certain meetings were actually held because of their requests. In addition, throughout the year the parents had opportunities to be and were in fact very involved with s education. The record is filled with examples of emails going back and forth. There is evidence of the parent involvement not only with the academic portion of 's year but with social aspects and other concerns. It is true that the parent was not always satisfied with the response but I find that all parties were given every opportunity to express their opinions and actively participate. In each meeting there were changes that were made specifically because of parents concerns and there was also changes made that were not IEP driven in order to address these concerns. I find that the evidence establishes that the parent did participate in a meaningful way. I find that there are no procedural violations that would support a finding that was not offered a FAPE for the 201I -2012 school year. find that this claim has no merit.
During the 2011-12 school year was in a general education setting in math, social studies and science art music computer time. His program was a transition program. He attended a 90 minute block each day of more intensive reading instruction in a smaller group. The group can be as large as 15 students. Five students in 's class were coming out of the class in a separate location for 90 minutes for intensive language arts instruction and some assistance in writing. (Tr. 87-88)
Several staff members followed the Preventing Academic Failure (“PAF”) and the Basic Writing by Hochman which are two programs used at . (Tr. 62) The District had sent teachers to the teacher training center at (Tr. 63)
was 's primarily special education teacher (Tr. 90) He served as his special education teacher for his direct instruction in English language arts, (“ELA”) and he also provided the co-teaching in the other core curriculum areas into the mainstream classes in the third grade. He took Orton-Gillingham classes through teacher training as well as other training to support the Orton- Gillingham program. (Tr. 63) He was s teacher in the 90 minute special education block and pushed into class one hour a day on alternate days.(Tr. 161) He could be parallel teacher, he could be teaching the whole class, he could be station teaching or just be the floater supporting students who needed support. (Tr. 92) He has a teaching assistant who alternates with him and who is in the class for an hour when he is not there. He was trained in Preventing Academic Failure (“PAF”) (Tr. 91) They use PAF and the Basic Writing Expository Writing program which are researched based programs that were designed at the School (Tr. 91)
was s general education teacher in the integrated program. He had training at (Tr. 952) He works with Mr. , the Special Education teacher throughout the school year. There are five or six student that have IEPs and the rest of the class consists of general education students. There are twenty one or twenty two students in total. (Tr. 953-954) The other adults in the class included Mr. and Ms. , (on alternate days) the Special Education Teaching Assistant, and sometimes community member volunteers. Mr. had taught math until January 2012 when he moved into the next higher math class with Mrs. (Tr. 959-960)
Ms. argues that 's teachers had none to minimal training by the school training institute or any other specialized training within the past several years and this make them, “including the special education teachers” not qualified to teach a “severely learning disabled student” like After reviewing the testimony I find it very surprising that Ms. would imply that Mr. was not capable of teaching. He was the one teacher to whom Ms. had expressed her appreciation. 'Mr. understood his needs ' (Tr. 1337) To now state that he is not qualified seems disingenuous. In addition, there is no requirement that in order to teach learning disabled children one has to have current training from the . Ms. implies that Mrs. misled her when stating that the teacher had training. As Ms. points out in her closing the parents and 's maternal grandmother had an opportunity to visit the school and meet with teachers prior to enrolling . They had every opportunity to ask any questions about the teachers qualifications. I find that there is no basis to support this claim.
MS is trained in several techniques that are considered to be supported by the Orton Gillingham Association. (Tr. 525) She began resource room with in October where he willingly went. However, on January 30 she began individual resource room with and he did not want to leave his class. (Tr. 871-874) This was in response to the Ms. request. She did continue with the group session. (Tr. 924)
One of the parent's more serious complaints involved the resource room. Ms. explained that resource room teachers differentiate instruction within the resource room based on the levels that the students are at. (Tr. 337) She defined differentiation to mean that the teacher will find ways to provide instruction to the different students at their different levels. “ The idea of going to the resource room is to close the gap.” (Tr. 353) In this case Mrs. determined that the group that she placed in was the right group and she would work with him and differentiate instruction. (Tr. 348) Ms. expressed concern that the instructional was above 's level in reading and decoding. (Tr. 339) Ms. explained that the purpose of resource room is to support a student, remediate a student and work on wherever there are weakness. As Ms. points out, New York State permits a special education class to include a three year span academically in reading, math, resource room, or other areas of specific need, so long as the needs of the students are “similar” Ms. opined that it was expected that a student would have struggles and feel some frustration.
had started resource room in October 2011 with Mrs. . His resource class consisted of three students including him and in February a fourth student was added. They met four times a week for 45 minutes a session. (Tr. 912) Ms. testified that she was aware of 's instructional level from speaking with Mr. . She described the various methods she used to address 's difficulties such as use of prompt, scaffolding instruction and re-teaching. (Tr. 924-925) She opined that did make progress . (Tr. 921) Mr. had discussed with Ms. that she was on a different level than him. I find that the evidence establishes that did make progress and the resource group was appropriate.
Another serious issue raised by Ms is the lack of individualized reading given to Ms. recalled discussing with the parent that they would be providing 90 minutes of reading instruction in a very small group with a special education teacher. (Tr. 270-272) There was agreement that the small group reading program would meet 's needs without pulling him out for additional out of classroom supports. (Tr. 73)
Ms. was offered a Web based program Book Share for students who have difficulty reading text or print. She declined this service. (Tr. 97)
Ms. raised the issue of This was written as a group service in the IEP. The school provided him with individual therapy. It appears that some of the sessions were missed at the beginning of the year. I find that this would have no bearing on the 2012-13 school year. I do not question the parent's allegations that sessions were missed but that had to be addressed prior to this hearing perhaps in the form of makeup services.
's father described the growth in his learning as “not as much as he had hoped” (Tr. 1259) He characterized s third year as “not the best” (Tr. 1257) He described's report card as “somewhat mediocre” . He stated “I think it is indicative of where he stands. It's his learning curve at that point in time.” (Tr. 1270) He described an as equally abysmal. (Tr. 1296) I find that the expectations of completely closing the gap was unrealistic. I note that even after s attending for a year his father did not think he was working up to his potential yet. (Tr. 1273) I raise this not as a negative comment towards but to underscore that this is a process that takes time.
When came into the school , Mr. described his reading at as pretty awful. (Tr. 562) He was reading somewhere near a low grade level. He was able to read really short sentences. He would take aside and work one on one with him to build him up. did get on the same passages as other students around late November, early December. He described as in sync with the rest of the class going forward. (Tr. 563) I find that this shows progress. Mr. opined that made progress in spelling, forming sentences a bit more clearly and generating ideas a little better around March and April. (Tr. 568)
In October 2011, they conducted a Wechsler Individual Achievement Test (WIAT) and had difficulty with reading and writing language. They had to go back to the grade level. In reading he was somewhere in the beginning of grade and in math somewhere in the grade.
In January they gave him the Woodcock-Johnson Third Edition. The test showed that he had moved to the range in passage comprehension. He had also made gains in mathematics.
Mr. described 's biggest growth between winter and spring closing the gap. (Tr. 577) At the end of the third grade was reading somewhere in the grade level. (Tr. 578) He was able to read grade with support. (Tr. 580) I find that this does establish steady progress. I find that the closing of the gap was going in the right direction.
The AIMS-WEB assessment is used to monitor progress on a regular basis (Tr. 113) They look at reading, reading fluency and comprehension. initially they were monitoring him at grade level. (Tr 114) They were now monitoring him at the grade level because he had reached his goal at the grade level. (Tr. 209) They were looking to close the gap.
Ms. is the Assistant Director of Special Education at the elementary level for the School District (Tr. 80) She explained that by spring was still but his level of skill had moved to a point where they can monitor him on a grade level (Tr. 116) He had not reached the grade level but he was within the grade level when they monitored progress. She opined that “absolutely” made quite a bit of progress (Tr. 117)
Ms. had requested a change in s math level after his first report card in around December. (Tr. 961) There was a meeting to discuss this change and everyone was in agreement. (Tr. 962) remained in the higher level class for the rest of the year. He took the State standardized examination and got a 3 in mathematics which means he is per forming at or above grade academic level. (Tr. 964)
's maternal grandmother testified that had told her that he copies other people's work and assignments. I find it difficult to believe that he was able to copy not only class work but standardized tests which are monitored.
I find that did make progress in all areas. No one is disputing that the gap is not closed, however, I find that it would be unrealistic for any program to close the gap completely during his grade.
One of the more serious allegation is that of “bullying” The parent points out several incidents where had issues with other students and alleged incidents with staff members. Ms. recalled learning about the incident that took place during the after school program run by the PTA. Ms. told her it was resolved. (Tr. 139) She had asked for the report from the Doctor who had seen but never received it. They did not find a pattern in which he was being targeted. (Tr. 389) Mr. is the principal of School. He testified that they take any allegation very seriously and any incidents were thoroughly investigated. (Tr. 738) In response to one of the reported incidents they had a security guard put in place to be with after school until he was picked up by a parent. (Tr. 740) There was an issue in the cafeteria which resulted in s lunch being discarded. (Tr. 192) Ms. reported his difficulties in the cafeteria and contacted Ms. , the social worker in the building. (Tr. 196) When Ms. expressed concern that he was being bullied they offered to investigate and question and any witnesses. She herself described the word bullying as “too strong” and wanted no investigation. (Tr. 119) Ms. did observed him and monitor him in the lunchroom. I find that the record is clear that each incident was investigated and procedures were put in place to minimize the chance of further confrontations with students.
I certainly do not take the concept of bullying lightly, however, these incidents while unfortunate are isolated and unrelated. I find no evidence to suggest that should not attend the School because of bullying. I find that these types of incidents could happen at any school or playground. I find that every claim was investigated and taken seriously.
One of the arguments for the 2012-13 school year raised by the parent is concern with Mr. 's behavior and procedures. Mr. , an attendance teacher, testified at the request of the parent. He had been asked by the District to investigate the issue of residency. The parent had issue with the manner in which this investigation had been conducted. Firstly, the evidence in no way establishes that Mr. was not following usual procedures. Secondly this occurred in April, after the parent had already decided on Even if the parents had a valid claim, this would not have any bearing on the District's offering a FAPE for the 2012-13 school year. Therefore, I do apologize to Mr. for his having to testify in this proceeding.
One of the issues that Ms. addresses in her closing is the fact that the October 2011 IEP removed summer services. Ms. explained that the District did not recommend extended school year services because was making substantial progress and there was no evidence or concern about regression that would make hi eligible for twelve month services. (Tr. 423) They provide extended school year services for children to prevent substantial regression. (Tr. 424) The recommendation for summer services in the IEP covered a time prior to being in the school. The extended school services on the October IEP are a carryover from the IEP for July and August 2011. (Tr. 427) They recommend extended school year services at an annual review which is typically conducted in the spring with plans for the summer. I find that this is not an instance where the District took away services. (Tr. 432)
I have attempted to discuss the parent's main concerns. While I am aware that the parent had other issues with the 2011-12 school year, none of these would result in an award for tuition reimbursement for the following year. The appropriate time to have addressed some of these issues and the appropriate remedy is not at a hearing for tuition reimbursement for the 2012-13 school year. For example, the parent did receive tutoring as part of the resolution which is an appropriate remedy. In addition , many of the issues that parent raised occurred after she had already signed a contract with and paid the full tuition. There is evidence of the parent's satisfaction with the program at the beginning of the year. While I recognize that this changed as the year went on, I find that the parent's decision was premature. I do not discount the parents' testimony about some of 's struggles during the year. I do not discount how difficult it is for any parent to observe their child less than happy. However, at the end of the year I find that did make progress. I find that there is nothing that occurred during the 2011-12 school year, that would allow the parents to unilaterally place in a private school with the expectation of tuition reimbursement for the 2012-13 school year. This does not mean that the parent did not have some legitimate concerns and that the District could have done more for in certain areas. However, tuition reimbursement is not the correct legal remedy.
This brings me to the discussion of the IEP that was developed for the 2012-13 school year which is the relevant IEP that could result in an award for tuition reimbursement. Some of the issues that would be addressed in this section overlap with what I have already been discussed in my analysis of the 2011-12 school year. In order to avoid repetition I will not repeat the discussion.
Ms. points out, the parent did not raise any procedural issues. It is well known that a parent is bound by issues raised in the complaint, however, it would be impossible to properly address the recommended program without looking at some of the procedural aspects.
A CSE meeting was held on May 3, 2013 to create an IEP for 's upcoming grade. (Exhibit D 42:) Ms. chaired the meeting. Other members of the Committee included Dr. CSE Psychologist, , Parent member, Mr. , Mr , Dr. , School Psychologist, Ms. , Ms. , 's parents and his maternal grandmother.
The meeting was adjourned to July 20, 2013 because the parent had requested a Central Auditory Processing Evaluation (“CAP”) and a Evaluation. The was not conducted because Ms. withdrew her request for the assessment. (Tr. 382) The team consisted of the various teachers who had worked with during the year, who had taught him reading, who were familiar with his issues, as well as members of his family. The team included not only a general education teacher but a special education teacher. I find that the team was properly constituted.
The team considered 's updated progress and assessments. They had his grade report card, a classroom observation , Resource Progress Reports, an updated Educational Evaluation, They also considered tests results from the Woodcock Johnson-III Form A test of Achievement, the Woodcock Johnson III Form B tests of Achievement and the AIMS Web Progress Monitoring Assessments. (these are tests that I have already referred to in my discussion of 2011-12 school year.
The team recommended an integrated co-teaching class. They recommended a Special class for 90 minutes for math and language. They recommended resource room in a small group four times weekly for 45 minutes, therapy in a small group four times monthly for 30 minutes and and in a small group one time weekly for 30 minutes. They recommended testing accommodations and program modifications. (Tr. 37)
As a result of the CAP the team recommended preferential seating and suggested teachers reduce rate of speech. They recommended the use of an .
The parent acknowledges that the team added eight sessions of therapy which she described as a “band-aid” However, it was the parent who had been requesting this service all along.
The IEP has twenty five goals including goals for reading, decoding fluency, letter word identification and sight word fluency. There were goals for writing, spelling, grammar. The CSE had reviewed s scores on the Math and ELA State Assessment where he scored on or above his grade level. Mr. described this as “fantastic progress” The team developed one math goal on the IEP.
The team added classroom accommodations. The IEP included supplementary aids and program modifications such as graphic organizers, visual aids use of manipulative , materials in large print. These were issues that Ms. had raised during the hearing.
Ms. wrote a progress summary on April 25, 2011, in preparation for s annual review. showed improvement in decoding skills, or reading fluency, and in handwriting. His written expression is still an area of weakness. His sentences were coming along nicely and improving. She described his oral language as an area of strength. His organization of ideas and his listening behavior had improved. She described improvement in his frustration tolerance and coping strategies. She agreed with the Resource Room recommendation. (Tr. 937) She opined that he was improving and they could start to talk about moving him into a lesser restrictive environment (Tr. 938) In comprehension he was on the same level as most students in the grade. (Exhibit D 29)
Ms. argues that the October, January and July IEPS are identical to the IEP. points out that there were updated evaluations considered at each meeting and there were different issues raised at each meeting, As discussed earlier in my decision, each meeting resulted in a change or modification to 's program. During the July meeting there were new goals added and new criteria added to existing goals. In direct response to the parents, there were modifications and accommodations made based on the results of the CAP. Dr. showed samples of different fonts and spacing which the parent had previously requested. (Tr. 1225) was added in response to parent's requests. There were updated reports and 's teachers spoke about his current levels of functioning. Ms. actually acknowledged during the hearing that additional support was added for the 2012-13 school year. (Tr. 1038)
The team did not recommend extended school year services because was making substantial progress and no evidence of concern about regression that would make him eligible for 12 month service (Tr. 423)
Ms. objected to the IEP because one of the proposed teachers had tutored without success. Firstly this does not mean that in a different environment (class setting) and with different material that would not learn in his class. The fact that a parent does not like a particular teacher does not result in a denial of FAPE.
The team discussed his current levels of functioning and looked at his progress. As discussed above I find that did make progress during the 2011-12 school year. I find no reason to find that he would not have continued to make progress.
The parent raises the issue of lack of Functional behavioral Assessment (FBA) and Behavior Intervention Plan (BIP) The evidence as discussed above indicates that 's behavior was improving. Ms. testified that during the year she had initiated the use of a “check system” to address some of 's behaviors. At the end of the year she no longer had to continue with this system. (Tr. 934) There is no evidence that his behavior was interfering with his ability to learn. It is also noted that he parent never mentions that has either of these in place for Ms. explained that there was no recommendation for a BIP because they did not think his behaviors interfered with his learning. (Tr. 77)
I do not find that the failure to develop either the FBA or BIP was a procedural violation in this case and I find that it certainly did not rise to the level of denial of a FAPE. The parent acknowledges that the team added and in a small group for 's grade. I find that this would have addressed some of the parent concerns with interacting with peers. The parent had declined the services that had been offered last year which may have minimized some of 's issues.
A team is required to consider different options that may be appropriate for a student. In this case the team considered less restrictive options but concluded that required a special program within a general education school. I find that this provides him with opportunities for mainstreaming and the opportunity to learn in the least restrictive environment.
All of 's teachers agreed with the recommendation. Everyone but the parents agreed that was absolutely benefiting from opportunity to participate in the general education for a portion of the day. Everyone agreed that still required direct special education services but that he benefited from participation with non disabled peers. (Tr. 396)
Mr. opined that benefited from exposure to typically developing peers.(Tr. 583-584) Ms. informally observed in class and described him as enthusiastic, staying on task, and working cooperatively with his peers and teacher. I find no evidence to support placing in a more restrictive environment. The parents disagreed and asked for a private school. I find that the IEP that was developed for for the 2012-13 year is both procedurally and substantively appropriate. I find that they offered a FAPE to for the 2012-13 school year in the least restrictive environment. I find no grounds for a private school.
The District has met their burden under prong one. The parent's request for tuition reimbursement is therefore denied without even discussing prong two and prong three. For purposes of having a complete record I will discuss each of the other two prongs.
With respect to prong two, I will address the appropriateness of the unilateral placement. A unilateral private program is only appropriate if it provides “education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2nd Cir. 2007), quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 359 (2nd Cir. 2006), quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982). While parents are not under the same requirements for placement of their child as the DOE, parents must demonstrate that the “services are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112; Walczak v.
Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2nd Cir. 1988).
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”)
is a “private independent special education setting for children with language learning disabilities.” is not exposed to any students who do not exhibit learning deficiencies. This exposure is not only required by law, but is invaluable to students to the extend that they are able to succeed in such an environment. The parents did not submit any documentation that supported the need for to be placed in a special education private school. s parents' description of his difficulties with particular peers are very unfortunate, however, the totality of the evidence does not reveal that he could not function in a mainstream setting. It also noteworthy that had undergone several changes in his routine when first coming to the District. His parents had divorced, he had already attended different schools and had just moved to a different neighborhood. I find that it is reasonable to consider that any one of these factors or the combination of these factors may have had an effect on his self esteem or difficulties with peers.
Parent had stated that she wanted to be in with mainstream students. (Exhibit 33, p.2) She opined that if he had been offered in a small group with mainstream children, it would have been a better idea (TR.1192) Mr. opined that he did not think it would be appropriate to put in a special school without any general education exposure. He opined that benefited from expose to typically developing peers. (Tr. 584) The parent sent a letter thanking the District for the mainstream opportunity (Tr. 52) was described as having increasing ability to participate and volunteer and answer questions. Ms. testified that socially handled himself very appropriately with his peers. (Tr. 929) She testified that liked being in his classroom and did not like missing the socialization. (Tr. 927) There was no testimony from either parent on how they made the decision to place him in such a restricted environment. I find no evidence to support or justify putting in a school that does not afford him mainstream opportunities. I find that this in and of itself would render inappropriate.
Additionally the Parents presented limited information regarding his progress at . There were no written progress reports submitted. There are no objective academic expectations for his content area classes. Absent such specifics it is exceedingly difficult if not impossible to undertake any analysis that would delineate his performance while at . I agree with Ms. that the three notebooks which were submitted as a sample of 's work at are of little probative value because there is no information about any of the circumstances surrounding the written documents. I find that there is a lack of basis from which a determination of the appropriateness of the school for may be made.
In order for Parents to meet their burden, they need to demonstrate that the School provide educational instruction specially designed to meet his unique educational needs that would permit him to benefit from instruction. (Gagliardo v. Arlington Cent. Sch. Dist., 489 f.3d 105, at 112 [2nd Cir.2007] and Frank G. v. Bd. Of Educ., 459 F3d 356 at 364-365 [2nd Cir.2006])
Parents presented no testimony from an administrator or teacher of the School regarding his educational profile, his needs, or the specific program of educational services provided to him at the School. There are no details about the curriculum or levels of materials utilized with him.
One of the complaints Ms. had with the resource room was that was grouped with students who were above his level. There is no evidence how is grouped with students at . This is another example of lack of necessary specifics for parent to meet her burden.
Ms. points out that was one of the students who was accepted into the summer program. This also raises the issues of whether did not make enough progress during the year. The problem is that we have no means of knowing these answers.
I do not discount both the parents and grandmother's testimony about progress that they have seen but this in and of itself is not sufficient. Ms. who visited for a half day special program did not observe any reading, math, science or social studies class. Mr. had never observed at school and could not offer any evidence of academic progress. I credit the testimony that is a happier child but this could be attributed to a number of factors.
The SRO has held that a private placement is inappropriate if it does not provide the necessary related services to address the student’s individual needs, See Application of a Student with a Disability, Appeal No. 08-119 (denying reimbursement where private school did not “provide the level of related services identified as appropriate to meet [the student’s] needs”); Application of the New York City Dept. of Educ., Appeal No. 07-018 (same) It is noted that the parent requested therapy from which is not available on site at the School. (Tr. 385) This is and of itself would not render the school inappropriate. It is also noted that the parent argues in her closing that is inappropriate because of the lack of a FBA. I do not agree with this argument (see prong 1) however, parents chose a school with students who do not have behavior problems. There is no evidence that had conducted an FBA or had a BIP for
There was testimony from the Ms. ., s father and s maternal grandmother about the teachers at , the class size, the teaching methods and the nurturing environment. I want to emphasize that I credit this testimony but I find that it is too general and not detailed enough and specific enough with respect to s program. I find that without more concrete evidence and information the parent has failed to meet her burden under prong two, especially in light of the fact that is such a restrictive environment.
The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374. The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement.
The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting). In many instances parents are required to sign a contract and give a deposit in order to make sure that the student has a school to attend in case the District does not offer an appropriate option. None of the parent's witnesses made any effort to hide the fact that had been wait listed at at the time he began at the District. The transcripts and testimony from all members of s family acknowledge that they were always interested in . Throughout the hearing, Ms. questions the District's witnesses about their training with the Institute. It is clear that they always felt very strongly about this school. However, this in and of itself would not preclude the parent from an award of tuition reimbursement. As Ms. correctly pointed out, she had given a deposit to another private school and forfeited it in order to send to a public school at . I do credit her that she wanted o have a productive year at the School.
However, there are several other actions or failure to act on the part of the parents that speaks to their intentions and the equities. The problem in this case is that the parents gave more than a deposit and in fact paid the whole amount to School prior to the CSE meeting for the 2012-13 school year. The parents had been invited for a two day visit at in December. She acknowledged that as soon as they gave him spot for the two day visit in December she decided to send him there. “He had to get in” (Tr. 1324) The parents entered into contract with in March 2012, and paid in full for s placement for the 2012-13 school year. Ms. had explained to me and understood that when she had originally brought the request for tuition reimbursement it was premature because it was prior to the CSE meeting.(Exhibit 38) (Tr. 76) What it appears that Ms. did not appreciate is the date of the CSE meeting was not just a date that would trigger her being able to bring the request, but the purpose was for her to attend the meeting and listen to and contribute to what was being offered for the 2012-13 school year. At the July meeting Ms. made it clear that she was sending to . I find that the evidence is clear that there was nothing that the CSE could have offered that would have resulted in her considering the . Ms. who had been so involved in every step of the 's education during the year could could not even recall being at the meeting. I find that even thought she attended it was just a mere formality.
Pursuant to section 300. .148(d)(1) of the Code of Federal Regulations, a parent must provide written notice to the School District of the intent to enroll his/her child in a private school at public expense at least ten (10) business day prior to removal of the child from the public school. Although it is clear that Ms. is a loving and very involved parent who participated in prior CSE meetings and numerous correspondences with the District. I find that at the CSE meeting which is the focus of this hearing for the 2012-13 school year, Ms. did not meaningfully participate. In the past Ms. constantly put everything in writing at least by means of email about her concerns and yet with respect to the year in question there is no evidence of any correspondence. It is undisputed that the parent had made up her mind for the 2012-13 school year without hearing what the District had to offer. I find that this was pre determined by the parents only after a few months of school. There is no evidence about her disagreement with the final CSE meeting or written notice of her intention to place at . (The parent does believe she did sent written notification). A parent has the right to send their child to any school but cannot expect the District to fund it without having the opportunity to offer a FAPE. The request for tuition is based mainly on the prior year and not on the meetings in May and July and the IEP which was developed from those meetings. I find that this reinforces the fact that the IEP that was developed for 's grade, really had no bearing on parent decision to send to The parent made several requests of the District which they later withdrew. The parent requested and then asked for therapy to be discontinued. (Tr. 132) (Exhibit 15) The parent had requested the Gates-Macinitie and the Boston test. Ms. ordered the tests and the parent did not want them administered. (Tr. 187) The parent did not want the services. (Tr. 130) The Department in response to parent's allegations that testing at showed to be illiterate, asked permission to obtain copies of the test. The parent never provided access to either the personnel who gave the test or the test itself. I want to be clear that the parent is very involved with her son's education and had been very active in participating with the Department for the first portion of the year. I find that this dramatic change in her behavior was a result of her being disappointed with initial results and her enthusiasm for . I find that she really lost interest in having any meaningful relationship with the District. As discussed above in prong one, I find that there was nothing in the record that would have justified Ms. deciding to remove , prior to the 2012-13 CSE meeting, and place him at another school.
Ms. points out that in most instances a final judicial decision on the merits of an IEP will come a year or more after the school term covered by that IEP has passed. This is definitely not the situation in this instance. The 2012-13 IEP which is the IEP that the District must defend had not even been created at the time that parents decided to unilaterally place him at . Parents were not expected to wait for the 2012-13 year to be completed prior to making a decision, however, they did have to wait until they at least knew what was being offered for the 2012-13 school year.
Equities have to be balanced and in this case I find that the District did respond to Ms. concerns and did schedule several CSE meetings during the year including two meetings for the 2012-13 school year. I find that the equities would have resulted in drastic reduction of any award in tuition reimbursement.
In summary I find that the Department did offer a FAPE to for the 2012-13 school year. I find that the program selected by the parent was too restrictive and not appropriate. I find that had their been an award of tuition reimbursement the equities would have resulted in a reduction of the amount.
The request for tuition reimbursement at for the 2012-13 school year is denied in its entirety.
August 26, 2013 Sharyn Finkelstein Esq. IHO
Footnotes
[1] Ms. is referred to as Ms. (her maiden name ) in some of the documents. (Tr. 96)
[2] Parent's initial always used instead of full name, also referred to as parent
[3] School District exhibits will be referred to as Exhibit D and Parent exhibits as Exhibit P
[4] Ms. waived the five-day rule on more than one hearing date (Tr. 229)
[5] Ms. pointed out that the parent is a lawyer but Ms. explained that she has not been practicing law
[6] Ms. accommodated Ms. by calling witnesses on her behalf without a subpoena (Tr. 27) I explained to Ms. that witnesses could appear by phone or by telephone (Tr. 21) I explained that what is at issue is the CSE meeting that took place for the 2012-13 school year. (Tr. 56)(Tr. 230) I explained to the parent the law pertaining to tuition reimbursement (Tr. 231)(Tr. 233) (TR. 234) (Tr. 520-521) (Tr. 548) I explained to parent how proceedings work and role of cross examination (Tr. 65)(tr. 148)(tr. 403) I gave the parent some leeway with respect to cross examination. (Tr. 198)(Tr. 323) Ms. explained in advance why she would object to documents from (Tr. 301) I suggested she should get a witness (Tr. 212) (Tr. 217) (Tr. 301-305) Explained procedures (Tr 213) I go over issues in case and parent repeatedly says she understands (Tr. 230-234) 2
[7] Initially parent had requested reimbursement for tutoring, however, that issue was resolved during the resolution meeting. (Tr. 218) 4