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: July 9, 2012
October 23, 2012
October 26, 2012
November 27, 2012
December 7, 2012
December 27, 2012
February 1, 2013
February 11, 2013
Record Close Date: March 11, 2013
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2012
Attorney — Student
No Appearances — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2012
Attorney (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2012
Attorney, Mayerson and Associates (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 27, 2012
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2012
Attorney — Student
Parents
Attorney — DOE
School Psychologist CSE (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 27, 2012
Attorney — Student
Speech Pathologist — Student
Neuropsychologist — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2013
Attorney — Student
Parents
Principal (via telephone) — Student
Special Ed teacher (via telephone) — Student
Director, (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2013
Attorney — Student
Parents
Therapist — Student
Attorney — DOE
By Amended Due Process Complaint dated September 6, 2012, the matter of . (“Student”) came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This Impartial Hearing Officer (“IHO”) was appointed on September 14, 2012, after the recusal of 4 other IHOS.
There were two amendments filed on the original Complaint dated June 28, 2012. One amendment was filed on July 13, 2012. (Exh. D) The second amendment is the Complaint at issue here. (Exh. E)
This is a matter involving a (Student). The Complaint alleges 109 different Free Appropriate Public Education (“FAPE”) violations (Exh. E) relating to the program offered by the District through the Individualized Education Progran (“IEP”) reflecting the meeting date of June 7, 2012. As relief, the parents seek tuition reimbursement/payment for the for the 2012-2013 school year beginning in September, 2012. In addition, the Complaint seeks reimbursement/payment for the costs for July and August, 2012. The Complaint also seeks reimbursement/payment for the cost of a paraprofessional for one hour per week of 1:1 therapy for stuttering with Dr. four thirty minute sessions of therapy per week, three 45 minute sessions of therapy per week, three 30 minute sessions of physical therapy per week, transportation to and from , up to four hours a month of individualized parent training, and a compensatory education award for all pendency services not received, and at least once hour per week of parent counseling and training as a compensatory education award. The matter did not resolve during the resolution period. A prehearing conference was held on October 23, 2012 and October 26, 2012 to review the issues in the Complaint and to address subpoena issues. (IHO Exh. 1, 2)
Upon the application of the parent on the 26th of November, 2013, the decision date in this matter was ordered to be reset to December 25, 2013. The parties were notified by Email and through a formal written notice. The reason was difficulties occasioned by Hurricane Sandy and witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 3)
A hearing date was held on November 27, 2012. A second hearing date was held on December 7, 2012. Upon the application of the parties on the 20th and 21st of December, 2012, the decision date in this matter was ordered to be reset to January 23, 2013. The parties were provided notice through email and written notice. The reason was difficulties occasioned by Hurricane Sandy, witness availability and complexity of issues. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 4)
Another hearing date was held on December 27, 2012. Upon the application of the parent on the 21st of January, 2013, the decision date in this matter was ordered to be reset to February 22, 2013. The parties were provided notice through email and written notice. The reason was difficulties occasioned by witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 5)
More hearing dates were held on February 1 and 11, 2013. Upon the application of the parent on the 20th of February, 2013, the decision date in this matter was ordered to be reset to March 21, 2013. The parties were provided notice through email and written notice. The reasons were the need to prepare post-hearing submissions. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 6)
Post-hearing submissions were received by this IHO on March 11, 2013, which is the record close date in this matter. (IHO Exhs. 7, 8)
FINDINGS OF FACT
The Student has academic skills in the low range, with a full scale IQ of 72 which is third percentile. (Exh. F) There is some scatter in his scores, with a score at the 19th percentile in terms of verbal comprehension. (Exh. F) Most other scores fall in the 2nd to 8th percentile. (Exh. F)
The Student has mastered a large sight word vocabulary. (Exh. F)
The Student needs visual and verbal cues for spacing and appropriate letter placement when writing. (Exh. F) The Student has difficulty writing complete sentences without support. (Exh. F)
The Student can identify numbers up to 100. (Exh. F) He can rote count up to
100. He needs assistance when he needs to show different ways to make a value. (Exh. F)
The Student needs assistance with almost all tasks because of his extreme impulsivity. (Exh. O; 289-291-292) He needs teaching in reading and math because he will be distracted by a variety of external stimuli. (476, 494)
, the Student requires to address impulsivity. (Exhs. F, K; 267-269) The Student will perseverate on certain subject matters. (Exhs. F, K) He can have difficulty relating to peers. (Exhs. F, K) He needs constant redirection and has significant attentional issues even with a SEIT. (Exh. K; 267-271) He is “behaviorally immature.” (Exh. K) He will approach strangers and ask in appropriate questions. (Exh. K) He is extremely disorganized in terms of tasks. (Exh. K) He will not follow directions and will then look around and copy another student. (Exh. 14)
The Student also has difficulty with as closing his pants, putting on his socks, using a tissue, and proper use of the bathroom. (Exh. 14)
The Student also stutters throughout the day. (Exh. O) He requires specific modeling and prompting on how to correctly produce fluent speech. (Exh. O)
For the 2011-2012 school year, the Student went to . (608)
An observation conducted of the Student on March 26, 2012 indicated that the Student was cooperative but demonstrated some stuttering when trying to express himself. (Exh. 5)
Also on or about March 26, 2012, the parent contacted the to apply to attend the school. (425-431)
On June 7, 2012, the Committee on Special Education (“CSE”) met to review the Student’s program for 2012-2013. Included in the team were , a psychologist; Ms. , a special education teacher; the parent; a general education teacher, Hannah Braun; Anne , the Student’s special education teacher. (138-139) The team reviewed a classroom observation, a neuropsychological assessment by Dr. , a report by Ms. . (141) The team did not have updated information regarding the Student’s speech and language issues because the assessments were not provided by the parents. (160) The meeting lasted over an hour. (139) The team did not dispute any of the information provided by Davidowicz or Edwards. (175-177) The team would not provide the Student with any teaching support though the parent and teachers expressed that he needed the support. (567)
The IEP dated June 7, 2012 does not include a . (“ ”) (Exh. F) The IEP does not include parent training. (Exh. F) It does not indicate that the Student will receive his own paraprofessional. (163) It does not indicate that the Student will receive a Special Educaation Itinerant Teacher (“SEIT”) because these are not available for students of this age. (162-163) It indicates that the Student does not need strategies, including positive behavioral interventions, to address behaviors that impede learning. (Exh F.) Goals relate to reading predictable pattern books, demonstrating an understanding of basic word families and patterns, demonstrating an understanding of basic letter/sound correspondence, identifying sounds, matching like sounds in words, identifying syllables in words, using phonetic generalizations, spelling, phonics, printing words, phonemic strategies, use of manipulatives for math, copying sentences, demonstrating an improvement in behavior by remaining on task, improving visual motor/perceptual skills, demonstrating increased strength and agility, demonstrating increased coordination. (Exh. F) There is no goal to address stuttering. (174)
The IEP recommends a special class therapy 4x30 1:1, physical therapy 2x30 , occupational therapy 2x30 1:1. (Exh. F) The Student is recommended for summer services. (Exh. F)
The placement recommendation for the Student was in Brooklyn, N.Y. (Exh. G) The parent observed the placement toward the end of June, 2012. (569)
The parents sent a letter to the District in response, asking questions about the placement. (Exh. H) Included among the questions was whether the site would provide any teaching or whether the site would provide individual behavioral planning and tracking. (Exh. H)
The parents also sent the District a letter dated June 15, 2012 indicating that the Student would be unilaterally placed at for 2012-2013 and requesting various relief that would later end up in the Complaint. (Exh. I)
On June 25, 2012, the parents indicated that they were rejecting the District offer because of insufficient teaching, the functional grouping in the classroom, the teaching level in the classroom, the inappropriate behaviors in the classroom. (Exh. J)
The parents were open-minded about attending a public school placement. (581)
They signed a contract for the on September 1, 2012. (583) Tuition is $35,000. (603)
The Student’s work at for 2012-2013 including work on improving behavioral and social skills, social studies work, reading comprehension work, writing work, science work, handwriting work, spelling work, mathematics work. (Exhs. QQ, 14) There is also work in various Hebrew and religious subjects. (Exh. 14)
The Student’s schedule includes classes involving religion, including Bible, Prayer. (Exh. 12)
The school provides small class size and addresses students with social, behavioral and learning issues through modified instruction. (331-332; 384-385) The Student’s classes include five students, one teacher, one classroom teacher. (338-339;
359) Teachers are certified. (333) The school has a behavior modification program that is based on ABA principles. (331-332; 384-385) The other student’s in the Student’s class also have focusing, social skills issues. (335-338)
The behavioral modification program at the school involves a token reward system. (360-362) The Student receives green tokens when he is behaving, and red tokens when he is not. (360-362) Tokens are exchanged for small rewards. (360-362) The behavior modification program helps the student remain in his seat and participate appropriately in class. (361-365) The Student has specific behaviors that he is working on through this plan. (413) This is written down next to his desk on the wall in pictures and in words. (414)
As a result, the Student interacts with other students better, he sits in the classroom better. (389) He has made progress in terms of sanitary issues. (389-390) He has made progress in following classroom routine, interacting with peers, engaging in age-appropriate conversations with peers, refraining from silly and inappropriate conversations. (363-365) The school’s behavioral program is also based on Applied Behavioral Analysis principles. (384)
Classroom teachers address the Student’s stuttering issues by positively reinforcing “smooth talking” and by refraining from addressing the Student’s stuttering. (366-367, 379) Progress has also been noted in regard to initiating conversations. (486487)
Teachers in the classroom use Orton-Gillingham reading instruction, which has resulted in the Student’s progress. (350) Progress has been noted in phonics skills, increased sight word vocabulary, improved ability to answer “wh” questions, fluency, answering literal comprehension questions. (373, 390; 479-481; Exh. 14) He is now able to answer questions about simple text. (375) He reads words. (390)
The “ ” program is used for handwriting, which has resulted in improvements in terms of writing letters correctly and with the proper spacing. (352) The Student has learned to brainstorm ideas for writing and classify them under categories. (Exh. 14) The touch math program is used to teach computation and has resulted in progress. (376-377)
The Student receives ten hours of additional support in the classroom from a special education teacher, , in reading and math. (468-472) This teacher provides support in the afternoon. (340) The teacher works with the Student in a quiet area outside the classroom. (476) The teacher also works with the Student inside the classroom. (483484, 495)
The Student requires constant practice in math. (Exh. 14) There has been progress in terms of adding and subtracting, skip counting. (390, 484)
Another teacher, , provides ten hours of support to work on Hebrew, to work on social skills. This teacher provides support in the morning. (532-536; 339)
In Science and Social Studies, there is no individual teacher but the classroom teaching sits next to him, prompting him. (377)
The Student receives through , who provides these services in her office. (211-
213) The therapy focused on the , and has resulted in progress in terms of speaking with fewer interruptions of shorter duration. (219-220)
The Student receives physical therapy (3x30 weekly) and occupational therapy (3x45 weekly) through related services authorizations. (589-591)
The Student’s summer program was at , which provided the Student with a special education teacher and did not provide religious instruction. (446-447) This is located in . (445) The program is academic from 8:00am to 3:00pm. (445) The Student did not stay overnight. (450) The classes included 8 students taught by a certified special education teacher. (448) The Student also received SEIT services for one hour per day on decoding, reading comprehension and math. (448) The Student also received speech and language therapy, occupational therapy and physical therapy at the program. (451-452)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii). The District also has a duty to review existing evaluation data on the child, including current classroom-based, local or State assessments, classroom based observations, and observations by teachers and related services providers. 34 CFR Sect. 300.305(a)(1)(i)(iii)
A review of the record here indicates that the District chose to assess the Student by reviewing the reports from the parents’ school, evaluators and providers. However, the District then failed to credit the substance of these reports, which recommend at least some 1:1 instruction. Dr. who assessed the Student in February, 2012. His neuropsychological report, which was reviewed by the CSE, indicated that the Student “continues to need one-to-one assistance of the type he is currently receiving with his
SEIT. . . .” (Exh. K, at 5) provided educational services to the Student in 2011-2012. She wrote a progress report for the Student on May 30, 2012. Ms. Edwards’s report, which was also reviewed by the CSE, indicated that “(p)ointing to written words in texts while reading or counting objects proves problematic without assistance.” (Exh. O, at
6) Ms. of the CSE testified that she has no reason to dispute any of the findings in these reports. Moreover, the IEP itself indicates that the Student requires instruction, including in math. However, the IEP does not recommend any instruction in the services section, whether through a teacher or through a dedicated aide. M.H. v. New York City Dep’t. of Educ., 685 217, F.3d at 251-252 (2d Cir. 2012)(parent awarded tuition reimbursement where IEP failed to account for a report that Student required instruction); R.E., 694 F.3d at 193-194 (in R.K. portion of decision, parent awarded tuition reimbursement where the “majority of reports” indicated that the Student required 1:1 instruction).
The record is also clear that the Student has significant behavioral concerns, including inattentiveness, difficulties with peers, perseveration on tasks. The record indicates that these behaviors interfere with the Student’s work to the point where it is difficult for him to concentrate, particularly in English and Math. In New York State, where a student's behavior impedes his or her learning or that of others, the CSE may be required to consider having an (“FBA”) conducted and a BIP developed for a student in certain non-disciplinary situations. 8 NYCRR 200.4(d)(3)(I); 8 NYCRR Sect. 200.22(a), (b)). An FBA is defined in State regulations as "the process of determining why a student engages in behaviors that impedes learning and how the student's behavior relates to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." 8 NYCRR Sect. 200.1(r)). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors. 8 NYCRR Sect. 200.22(a)(2). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement." 8 NYCRR Sect. 200.22(a)(3)).
Districts are required to consider behavioral supports such as BIPs when a Student “exhibits persistent behavior that inhibits learning.” 8 NYCRR Sect. 200.22(b)(1)(I). A BIP must include a baseline measure of the problem behavior, intervention strategies, and a schedule to measure the effectiveness of the interventions. 8 N.Y.C.R.R. Sect. 200.22(b)(4).
The record establishes, and I find, that the Student exhibits behavior that consistently impedes learning. Teachers from the Student’s former school and Dr. indicated that the Student has . See, e.g., R.E., 694 F.3d at 194 (in R.K. portion of decision, Court found FAPE violation in case involving student with autism where no FBA/BIP); Lauren P. V. Wissahickon Sch. Dist., 48 IDELR 99 (E.D. Pa. 2007), rev’d on other grounds, 51 IDELR 206 (3d Cir. 2009)(student had , completing assignments). However, there is nothing in the record to suggest that the District considered conducting an FBA or a BIP for this Student,
It is noted that the caselaw supports the proposition that an FBA is not always required where a student has behavioral issues. A.C. ex rel M.C. v. Bd. of Educ., 553 F. 3d 165 (2d Cir. 2009). However, in such a circumstances, the court or hearing officer must take “particular care” to make sure that the IEP adequately addresses the Student’s behaviors. Here, while the IEP does make some mention of the Student’s behaviors, the primary management tool suggested was proximity to the teacher to assist in refocusing and redirection. The reports that were before the CSE and are before this IHO suggest that this management tool will not be enough to keep the Student focused in math and reading. Rather, the record indicates that a ratio is needed for the Student in certain subject matter areas to address his inattention.
Finally, the record indicates that the Student has a stuttering issue that can make it difficult for him to express himself. Dr. , who credibly testified, indicated that the Student requires therapy to address . However, there is nothing in the IEP that would lead a teacher or a therapist to address the Student’s . There are no goals relating to stuttering on the Student’s IEP. Corchado v. Rochester City Sch. Dist., 86 F. Supp.2d 168 (W.D.N.Y. 2000)(where specialist recommended services to address stuttering but District did not provide services, Student found eligible for services). In fact, it appears that there are no speech and language therapy goals or objectives in this IEP. Cf. R.E., 694 F.3d at 194 (2d Cir. 2012)(in R.K. portion of decision, failure to include speech and language therapy and parent training in IEP contributed to finding that Student was denied FAPE); M.H., 685 F.3d 217, 248 (2d Cir. 2012)(holding that goals must be individualized to the student’s special education needs).
Given the above, I find that the cumulative impact of the above violations denied this Student a FAPE for 2012-2013. R.E., 694 F.3d at 191.[1]
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
It has been held that a unilateral private placement cannot be regarded as proper under the IDEA when it does not, at a minimum, provide some element of special education services in which the public school placement was deficient. G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552 (S.D.N.Y. 2010)
Here, the parental placement does provide services that meet the Student’s special education needs. In particular, the program created by the parent provides the Student with individualized teacher support in core subjects, a small class size, individually tailored behavioral interventions, modified curriculum in all subjects. Teachers are certified and the testimony of the witness from the school was credible.
The program at the school has worked well for the Student. The program involves a token reward system. The Student receives green tokens when he is behaving, and red tokens when he is not. Tokens are exchanged for small rewards. The behavior modification program helps the student in class. The Student has specific behaviors that he is working on through this plan, which is written down next to his desk on the wall in pictures and in words. A teacher, , provides extra support to the Student in regard to social skills.
The Student also has made progress in terms of , following classroom routine, interacting with , refraining from .
The parents’ program also addressed the Student’s . Classroom teachers address the Student’s issues by positively reinforcing “smooth talking” and by refraining from addressing the . The Student also receives therapy to address his . In regard to speech, progress has also been noted in regard to initiating conversations.
The school employs appropriate methodologies for this Student. Teachers in the classroom use Orton-Gillingham reading instruction, which has resulted in the Student’s progress in phonics skills, increased sight word vocabulary, improved ability to answer “wh” questions, fluency, answering literal comprehension questions. The “ ” program is used for handwriting, which has resulted in improvements in terms of writing letters correctly and with the proper spacing. The Student has learned to brainstorm ideas for writing and classify them under categories. The touch math program is used to teach computation and has resulted in progress.
In reading and math, the Student receives ten hours of additional support in the classroom from a special education teacher, . The teacher works with the Student in a quiet area outside the classroom and also inside the classroom. Progress is noted in math in terms of adding and subtracting, skip counting.
The District indicates that there is insufficient objective evidence of the Student’s progress at the . Cases indicate that where there is testimony from special education professionals and documentary evidence indicating progress, parents can receive tuition awards. G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552 (S.D.N.Y.
2010) In fact, the record does contain the IEP which indicates progress. (Exh. 14) Additionally, the record contains a significant amount of testimony detailing progress in the setting. E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417 (S.D.N.Y. 2010)(progress reports can be used to establish progress on the second criterion), aff’d 59 IDELR 63 (2d Cir. 2012); A.D. v. New York City Dep’t of Educ., 690 F. Supp.2d 193 (S.D.N.Y. 2010)(testimony can be sufficient to establish progress on second criterion.). There is nothing in the record to contradict this testimony.
The District also indicates that related services were provided at the behest of the District and that the program should therefore be deemed inappropriate. However, where Districts provide related services to students in private schools, parents may receive awards for tuition. M.H., 683 F.3d at 253-254. Parents need not show that their placement provides every possible educational service that might be necessary to maximize the student's potential. Frank G., 459 F.3d at 364-365. As the Circuit stated:
To qualify for reimbursement under the IDEA, parents…. need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Cf. G.R. v. New York City Department of Education, 53 IDELR 9 (S.D.N.Y. 2009)(school did not provide child with therapy, which would have been appropriate for student; reimbursement ordered; was only one area where the student had deficiencies); Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no speech provided by summer program, and District had recommended ; parental placement deemed appropriate).
The District also argues that the parental placement is not in the Student’s least restrictive environment. However, there is nothing in the record to suggest that this Student can be maintained in a general education placement. The parental placement is in a self-contained classroom in a special education school, just as the District placement is in a self-contained classroom in a special education school. The evidence does not show that the Student would be exposed to more non-disabled peers in the District placement.
P. v. Newington, 546 F.3d 111 (2d Cir. 2008)(LRE relates to integration of disabled students with non-disabled peers); Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993)(same).
Finally, in regard to the summer school placement , the District argues that the parental placement does not provide sufficient special education support for the Student. The record indicates that the summer placement provides only 1/4 of the individualized support than was provided at Additionally, there is no evidence of any tailored behavioral plan for the Student at . The record is not clear in regard to the Student’s progress at the school, and there is nothing in the record to indicate that the program employed any interventions to address the Student’s stuttering. Accordingly, I find that the summer program did not provide sufficient special education services to meet the Student’s special education needs, and I will deny the request for funding in this connection. Stevens v. New York City Dep’t of Educ., 54 IDELR 84 (2010)
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The District argues that the contractual obligation of the parent is illusory, pointing to Mr. and Mrs. A v. New York City Dep’t of Educ., 447 F. Supp.2d 329 (S.D.N.Y. 2006). However, the record does not support this claim. The record indicates that the parents signed an agreement to pay tuition to and owes money to it and the providers who have worked with her child. The District argues that there is no payment schedule in the agreement, but there is nothing in the record to suggest that the absence of a payment schedule suggests that the contract is illusory.
The District also argues that the parents had no genuine interest in considering a public school for the Student. However, the unrebutted testimony of the parent in the record indicates that the parent visited the proposed placement in question and then sent letters to the District inquiring about the placement. The District did not respond to those letters. The District also indicates that the parent did not express her disagreement with the IEP at the CSE meeting. However, the record indicates, and I find, that the parent did express disagreement IEP at the CSE meeting, in particular with the lack . Under the circumstances, I cannot find that the parents “went through the motions,” as the District suggests.
The District also indicates that the parents did not appropriately present their concerns in the 10 day notice. Citing to M.C. v. Voluntown Bd. Of Educ., 226 F.3d 60, 68 (2d Cir. 2000), the District argues that the parents did not point out IEP defects in the 10 day notice. However, in Voluntown, the ten day notice was not at issue. Rather, in Voluntown, the parent had not raised the issue of counseling until well after the Complaint had been filed. As a result, the court properly ruled that equities favored the District. Here, the parent did indicate disapproval of the lack of during the CSE meeting. Additionally, the notice does detail the lack of in the placement. The District did not address this issue when the parents sent this notice. Under the circumstances here, this IHO is of the view that the District was on sufficient notice of the parents’ dissatisfaction with the IEP and placement. Accordingly, I will not exercise my discretion and penalize the parents for the notice. The parents prevails on the third criterion and is awarded 75% of tuition funding for the as per the request in the brief (page 24), therapy, and SEIT services for 2012-2013. Dated: March 21, 2013
_____________________________
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
ML:dl
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON JULY 9, 2012
PARENT
A Corrected Demand for Due Process, 7/3/12, 14 pp. B Demand for Due Process, 6/28/12, 15 pp. C Findings of Fact & Decision by IHO Wall, 7/29/10, 15 pp.
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 27, 2012
PARENT
D Amended Complaint, 7/13/12, 14 pages E Second Amended Complaint, 9/6/12, 14 pages F IEP, 6/7/12, 15 pages G Final Notice of Recommendation, 6/15/12, 2 pages H Final Notice of Recommendation Response, 6/20/12, 3 pages I Letter from Parent, 6/15/12, 3 pages J Letter from Parent, 6/25/12, 3 pages K Reevaluation, 2/20/12, 10 pages L Letter from Parent, 5/18/12, 2 pages M Related Service Student Progress Report, 5/29/12, 2 pages N Related Service Program Report, 5/30/12, 2 pages O Educational Progress Report, 5/30/12, 9 pages P Letter from Doctor, 6/26/12, 1 page Q Letter from Parents, 7/4/12, 2 pages R RSA for OT and PT, 7/12/12, 2 pages S Follow up from Parents to Dr. , 7/17/12, 5 pages T Signed Subpoenas, 7/23/12, 12 pages U Response, 7/30/12, 4 pages V Schneider Progress Report and Recommendations, 8/28/12, 1 page W Educational Progress Program Review, 1 page X Related Service Attendance Form, 8/13/12,[1] page Y Withdrawn Z Withdrawn AA Withdrawn BB Withdrawn CC Withdrawn DD Paraprofessional Qualifications, 2 pages EE "TEACCH Methodologies” FF "ABA Methodologies," 3 pages GG Withdrawn II District Organizational Directory,[3] pages JJ Special Education Service Delivery Report, 2011 - 2012 KK School Enrollment Contract, 9/1/12 LL Proof of Payment, 9/1/12 and 10/23/12,[2] pages
DEPARTMENT OF EDUCATION
4 IEP, 6/7/12, 16 pages
5 Classroom Observation, 3/26/12, 6/5/12
6 Withdrawn
7 Withdrawn
8 Withdrawn
9 Withdrawn
10 Summary and School Report, 5/21/12, 1 page
11 Letter from Parent, 8/23/12, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 27, 2012
PARENT
NN Progress Report, August 2012, 1 page OO Progress Report, 8/7/12, 2 pages PP Resume of Dr. , Undated, 2 pages QQ Progress Report, December 2012, 8 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 1, 2013
PARENT
MM Summer Trip and Fee Contract, 2012, 2 pages
DEPARTMENT OF EDUCATION
12 schedule, 2012 - 2013, 1 page 13 Application for , 3/26/12, 7 pages 14 School IEP, 12/18/12, 16 pages 15 Intake Assessment, 4/19/12, 6 pages
IMPARTIAL HEARING OFFICER
I Transcript of PHC, 10/23/12, 10 pages II Transcript of PHC, 10/26/12, 26 pages III Timelines Notice, 1 page IV Timelines Notice, 1 page V Timelines Notice, 1 page VI Timelines Notice, 1 page VII Parents’ Brief, 3/11/13, 30 pages VIII District’s Brief, 3/11/13, 25 pages
Footnotes
[1] I have considered the parents’ other allegations in the Complaint, and find that I need not reach them given my determinations herein. Application of a Student with a Disability, Appeal No. 09-072.
[1] Withdrawn
[2] Amended Response, 9/19/12, 2 pages
[3] Withdrawn