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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 28, 2013
May 14, 2013
May 30, 2013
Actual Record Closed Date: June 20, 2013
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 28, 2013
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — Student
Supervisor (Via Telephone) — Student
Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 14, 2013
Attorney — Student
Attorney — Student
Supervising Attorney — Student
SR., — Parents
Teacher (Via Telephone) — Student
Occupational Therapist — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 30, 2013
Attorney — Student
Attorney — Student
Supervising Attorney — Student
Law — Student
Parents
Occupational Therapist — Student
Clinical Neuropsychologist — Student
Attorney — DOE
Mr. ., the father of ., requested an impartial hearing on February 25, 2013 for the purpose of seeking funding for his unilateral placement of for the 2012/2013 school year.[1] I was designated to hear this matter on February 26, 2013 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing was held on March 28, May 14 and May 30, 2013. The compliance date was extended on three occasions, due to the unavailability of witnesses, and the extensive testimony and issues. The final compliance date is July 2, 2013. (IHO Ex. III, XI, XI).
is a classification . (Par. Ex. G). His classification is not in dispute. (IHO Ex. 1). He has attended the since September 2011. (DOE Ex. 6).
A developmental was conducted on January 17, 2011. adaptive/problem-solving and language skills were at a . It was recommended that he continue to participate in a small structured classroom setting with visual schedules and supports, organization techniques and strategies, social skills stories, social skills/relationship building small groups, ; and continuation of (Par. Ex. T).
attended the for the 2011-2012 school year, and the placement was funded by the DOE, pursuant to a settlement. (Tr. p. 237) In a Progress Report dated December 2011, it was reported that he attended a classroom with a staffing ratio of and that he received related services of , twice each week individually each week individually, once and once in a group; and OT three times each, twice individually and once in a dyad. (DOE Ex. 6).
, a licensed occupational therapist employed at the , testified that she began working with in September 2012. (Tr. p. 170). They work on sensory regulation, motor planning and visual spatial needs. struggles with regulation and needs a lot of support from familiar adults with sensory supports. (Tr. pp. 173-174). The sensory supports include the trampoline, a swing and a brushing protocol. (Tr. p. 176). The brushing protocol is a deep proprioceptive technique. (“DPPT”). A squeezing protocol, performed in a rhythmic and slow way, also helps him achieve a state of calm and regulation. Both DPPT and the squeezing protocol require special training. (Tr. pp. 177-178). Ms. has trained ’s teacher, Ms. in DPPT (Tr. p. 217). The sensory gym provides with sensory input in an organized way. (Tr. p. 180). A sensory gym is a treatment space used by occupational therapists to provide sensory integration therapy. (Tr. p. 194).
Ms testified that since September 2012, has progressed in his ability to remain regulated and in his ability to reflect on periods when he was angry and frustrated. Nevertheless he continues to have difficulty with regulation and requires significant adult support (Tr. pp. 185186).
Ms. , a certified special education teacher, testified that she is a head teacher at the Rebecca School. (Tr. pp. 93-94). This is her second year as ’s teacher. ’s class consists of nine students aged six through nine, Ms. and four teaching assistants, all of whom are college educated. (Tr. pp. 96-97). receives mostly outside of the classroom. He can receive his therapies in the therapists’ office or in the . 2 He , maintaining engagement and social skills. (Tr. pp. 98). When he , his ability to communicate is diminished, and he is unavailable to attend to activities. He receives sensory input including DPPT, developed by the occupational therapist, and movement activities, which help him remain regulated. (Tr. p. 100). His classroom has a trampoline; and is also available. receives and responds to sensory supports all day long. (Tr. p. 102).
During the 2011-2012 school year, improved in his ability to remain engaged for longer periods of time. As of June 2012, he still required adult support to remain regulated throughout the day. (Tr. p. 108). During the current school year, is more consistently regulated and better able to communicate his feelings. (Tr. pp. 109-110).
On May 9, 2012, the Committee on Special Education (“CSE”) met to recommend a program for for the 2012/2013 school year. Dr. , a school psychologist who also served as the District Representative, the parent, , a special education teacher, Ms. , a school social worker , ’s teacher at the , and a parent member participated in the meeting. (Par. Ex. G).
Ms. testified that both she and the father discussed ’s sensory needs. Ms. explained that he needs adult support during the day to remain regulated. (Tr. pp. 113-114). The CSE recommended placement in a special class (D75) (6:1: l), with related services of SLT (3 x 30 individually, and 2 x 30 in a group of 3); OT (2 x 30 individually; and 1 x 30 in a group of two); and PT (2 x 30 individually). Twelve month programming was recommended. (Par. Ex. G). Ms. Stabile disagreed with the recommended program, because she felt that benefited from instruction with a 2:1 staffing ratio. (Tr. p. 114). She testified that when he is dysregulated he requires one-to-one support, and sensory supports, like the swing, the trampoline and the brushing protocol. (Tr. pp. 149-150). He can become dysregulated from an environment that is really busy or loud; or from engaging in something that’s making his body very excited. (Tr. p. 134). He becomes dysregulated on a daily basis. (Tr. p. 153).
’s IEP (in the section entitled “Physical Development”) reflects his need for a large amount of sensory input throughout the day. (Par. Ex. G, p. 2). With respect to Social Development, the IEP describes how behaves when he becomes dysregulated; and stated that “he often requires adult support through sensory input such as deep pressure squeezes or brushing to slow him down.” (Id. pp. 1-2).
Ms. Stabile testified that she is working on all of the goals in the disputed IEP; because those were her goals. (Tr. p. 147). The IEP includes goals for increasing ’s ability to maintain regulation throughout the day; expanding his ability to sustain interactions with peers and adults; increasing his ability to remain in a continuous interaction with a familiar adult; increasing his literacy and math skills; increasing his life skills; improving his ability to integrate sensory information; improving motor planning and sequencing skill; three OT goals; and four SLT goals. It does not include any PT goals. (Par. Ex. G). The IEP also includes the following Management Needs, which Ms. finds to be effective, and which were taken from her reports. : “re-direction; repetition, strong sensory input, clear/familiar directions; modeling, adult support for engagement with peers; structured environment; using highly motivating activities.” (Tr. p. 148; Par. Ex. G p. 2). [3]
According to the December 2012 progress report, has developed an increased ability to attend to a group read aloud; has demonstrated more of an awareness of text and letters; has demonstrated an increase in his comprehension; and has shown improvement in his math skills. (Par. Ex. K).
Dr. , a clinical neuropsychologist, evaluated on January 15, 2013. performed at below a kindergarten level in academic areas. He was quite inattentive and had difficulty remaining on-task. perseverated on the topic of trains and city landmarks. His history, current test data and behavioral presentation were consistent with a diagnosis of Pervasive Development
2
receives the following therapies at :, SLT twice each week individually, one time per week in a dyad and one time per week in a cooking group; and OT three times each, twice individually and once in a dyad. The frequency of his counseling sessions is not indicated in the progress report. (Par. Ex. J). Disorder, NOS. She recommended that he remain in a small, structured, specialized education setting that has a therapeutic component to address his emotional, behavior and social needs. (Par. Ex. L). She testified that a therapeutic setting is one that can address all of his needs throughout the day , his need and any that arise. (Tr. p. 228).
Mr. ’s father, testified that he is a certified special education teacher. (Tr. p 235). He testified that received early intervention; and attended , as a . He entered School for his kindergarten year. (Tr. p. 237).
He testified that he attended the May 9, 2012 CSE review. He disagreed with the recommended program, because he felt that it would not provide the one-to-one adult support that requires when he . He testified that he voiced these concerns at the CSE review. These concerns were also expressed by Ms. , The District Representative responded stating that children with autism are placed in the classes. (Tr. p. 253).
Mr. testified that he was aware that the DOE was supposed to recommend a school placement for by June 15. (Tr. p. 257).[4] As of June 15, 2012, he did not receive an offer of placement or a Nickerson Letter, and he was concerned that the new school year was two weeks away. (Tr. p. 258).
On June 18, 2012, the parent, through his attorney, wrote a letter to the CSE stating that had not been offered an appropriate placement for the 2012-203 school year, and that he intended to place him at the Rebecca School and seek tuition reimbursement. (Par. Ex. E). He did not receive a response to this letter. (Tr. p. 259).
He received a final notice recommending a site on July 2, 2012. (Tr. p. 263) 5, and went to visit the recommended site on July 11. (Tr. p. 266). The sensory supports within the classroom were limited to shaving cream and play doh, which the class participated in as a group. The class had a swing; but there were no brushes available for . (Tr. p. 271). Nor did the classroom have padded walls or foofs. (Tr. p .272). Related services were provided within the classroom. (Tr. p. 270). He felt that recommended placement was inappropriate because it did not provide adequate adult support. He did not believe the school could implement ’s IEP. (Tr. p. 274).
On July 12, 2012, he wrote a letter to the CSE rejecting the proposed placement because
(1) students with autism are mixed with students classified as ”; (2) because the school does not have a sensory gym; and (3) the classroom would not provide adult support with sensory input which requires. He wrote that he planned to continue ’s enrollment at School. (Par. Ex. F). He did not receive a response to his second letter. (Tr. p. 276).
On June 22, 2012, the parents signed a contract enrolling at the for the 2012-2013 school year, with tuition of $97,700.00, and made a non-refundable deposit of $1,000 (Par. Ex. N). He testified that the total family income is approximately $70,000. He is seeking prospective funding and reimbursement for the amounts already paid toward the tuition. (Tr. 281).
Mr. . testified he has seen improvement in ’s ability to verbalize and his tantruming has decreased. He has also made progress in his ability to engage with people; and in reading and math. He is now able to ask for sensory inputs which allow him to remain regulated. (Tr. pp. 277-279). DOE Position
The DOE’s position is that its IEP provided with a program reasonably calculated to enable him to make progress, and therefore the parent’s request for tuition reimbursement should be denied. (Tr. p. 291). The DOE argues that under R.E. v. N.Y.C. Dept. of Educ. 694 F. 3d 167 (2d Cir. 2012), the program should be judged based upon the IEP; and not upon the parents’ speculation that the school would not be able to implement the IEP. The DOE argues that the IEP could have been implemented with the recommended staffing ratio. (Tr. pp. 308-309). The IEP also argues that the cost of the is unreasonable. (Tr. pp. 313-314).
The DOE did not present any testimony. It failed to present any evidence regarding the proposed site except for a document containing a general description of District 75 programs. This document did not make reference to the use of sensory integration in educating students with autism. (DOE Ex. 11).
PARENT’S POSITION
The parents’ position is that the recommended staffing ratio (6:1:1) was inappropriate for . (Tr. p. 331). The parents also argue that the DOE failed to make a timely site offer. (Tr. p. 322). Citing, D.C. ex re. E.B. v. New York City Dept. of Educ. 2013 WL 1234864 (S.D.N.Y. 2013), they also argued that the recommended site was incapable of implementing the IEP because it lacked the sensory equipment; and its staff was not trained in the protocols cited in ’s IEP. (Tr. pp. 329-331). The parents argue that the is an appropriate placement, and that equitable considerations support the parents’ request for funding. (Tr. pp. 332-335).
The parties stipulated that the 2012-2013 school year began on July 5 or July 6. (Tr. p. 85).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. Application of a Student with a Disability, Appeal No. 11-162 (citations omitted). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997). The school district must recommend a school which is capable of satisfying the student’s IEP requirements. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
Ms. testified that becomes dysregulated on a daily basis; and that during those time periods, he responds to one-to-one supports, including specialized brushing and squeezing techniques. This is also reflected in his IEP. The record supports the parent’s position that recommended staffing ratio is inadequate to provide with this level of adult support, and sensory input throughout the day, to keep him regulated.
In addition, the DOE failed to present any evidence that the recommended program could be implemented at the recommended site. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, supra; D.C. ex re. E.B. v. New York City Dept. of Educ, supra. The description of ’s Physical Development, Management Needs and Social Emotional needs in his IEP clearly indicate his need for strong sensory input throughout the day, such as deep pressure squeezes or brushing. Specific sensory input (DPPT and deep squeezes, and use of the sensory gym) is also a component of several of the short-term objectives contained in ’s IEP. These techniques, which require specific training, are performed in OT, and in the classroom at the . The DOE failed to present evidence that this type of sensory input or equipment would be available throughout the day at the recommended site.
Mr. testified that based upon his visit to the recommended site, the sensory supports within the classroom were limited to shaving cream and play doh, which the class participated in as a group. There were no brushes available therapy. Nor did the classroom have padded walls or foofs. OT was performed within the classroom; not in a sensory gym. None of his testimony was rebutted by the DOE. [6]
For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations.
APPROPRIATENESS OF PARENTAL PLACEMENT
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).
I find that the parent demonstrated that the is an appropriate educational program designed to meet ’s needs. is educated in a small class, with a 2:1 staffing ratio, and staff is trained in providing him with sensory input throughout the day, to keep him regulated. His program also includes related services of . has progressed in his ability to remain regulated for longer periods of time; in his ability to articulate his needs; and in his reading and math skills. The provides a therapeutic setting consistent with Dr. ’s recommendation.
Equitable Considerations
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
The record indicates that the parent cooperated with CSE by participating in the CSE review and expressing his specific concerns regarding ’s need for sensory input and a great deal of adult support. I find that the parents acted reasonably in enrolling at the Rebecca School, on June 22, 2013, where a placement recommendation had not yet been received as of June 15, 2013, as required by DOE standard operating procedure; and where the parents gave the DOE the required notice. The DOE’s position, that under R.E. v. New York City Dept. Of Educ., supra, the parents are precluded from speculating about the ability of the recommended site to implement the IEP, has been rejected by the United States District Court, Southern District of New York in D.C. ex re. E.B. v. New York City Dept. of Educ., supra and B.R. ex rel K.O. v. N.Y.C. Dept of Educ, 2012 WL 6691046 (S.D.N.Y. 2012).
The parents have demonstrated that they were unable to pay the entire tuition School tuition, and seek reimbursement. Their family income is less than ’s tuition for the 2012-2013 school year.
The provides with a staffing ratio and a great deal of specialized services, including SLT, OT and Counseling. The DOE failed to present any evidence that the tuition charged by is unreasonable.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall fund ’s tuition at the Rebecca School for the 2012-2013 school year, by reimbursing the parents for the amounts they have paid, upon presentation of proof of payment thereof; and by paying the balance of the tuition directly to . Dated: July 2, 2013
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DM:gc
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 RECORD
PARENT
D Due Process Response, dated 2/2013, 4 pages E 10-Day Notice, dated 6/18/12, 2 pages F Placement Rejection Letter, 7/12/12, 1 page G IEP, 5/9/12, 17 pages J Progress Report, Dated 6/2012, 14 pages K Progress Report, 12/2012, 12 pages L 1/15/13 M FNR, dated 6/29/12, 3 pages N '12-'13 Enrollment Contract, dated 6/25/12, 7 pages O Affidavit of Tuition, 11/15/12, 2 pages P E-mail, dated 3/19/13, 3 pages Q Certification of , 1 page, 12/25/12 R School Function Eval, 4/13/11, 8 pages S School Function Eval, 4/13/11, 7 pages T Developmental Pediatric Eval, Dated 1/17/11, 4 pages U Student Contact Sheet, dated 7/8/11, 1 page V DOE Turning Five Case, dated 3/9/11, 4 pages W Annual Speech and Language Report, 1/4/11, 2 pages
DEPARTMENT OF EDUCATION
3 SESIS Events, various dates, pages 4 Notice of IEP meeting, 3/27/12, 4 pages 5 Notice of IEP meeting, dated 5/9/12, 4 pages 6 Interdisciplinary Report, 12/2011, 12 pages 8 Department Meeting Minutes dated 5/9/12 69, 4 pages 11 Special Education Program Description, 5/7/13, 6 pages
IMPARTIAL HEARING OFFICE DESCRIPTION
I Due Process Complaint, 2/25/13, 8 pages II Pre-hearing Telephone Conference Summary, 3/15/13, 1 page III Extension of compliance date, 3/18/13, 1 page IV Subpoena to , 3/13/13, 2 pages V Subpoena to , 3/13/13, 2 pages VI Subpoena to , undated, 4 pages VII Objections, 3/15/13, 2 pages VIII response to DOE Objections, 3/18/13, 2 pages IX Objections to Subpoena of , 3/26/13, 2 pages X Case Follow-up Sheet, 5/14/13, 1 page
Footnotes
[1] In his complaint, the parent states that (1) the CSE failed to make a timely offer of placement by June 15, 2012; (2) the IEP is substantively deficient because it fails to adequately describe ’s need for a quiet environment to re-regulate, with support; (3) that the staffing ratio is inadequate; (4) that the proposed placement is inappropriate because it cannot accommodate ’s sensory needs; and because it combines . (IHO Ex. I).
[3] Several of the IEP goals include short-term objectives which specifically refer to specific sensory input; including deep pressure squeezes (or DPPT) from a familiar adult (Par. Ex. G-4, 6); requesting sensory or emotional support, such as brushing (Par. Ex. G-7); and executing a 3 step motor sequence in the sensory gym. (Par. Ex. G-7).
[4] The DOE conceded the DOE standard operating procedure is to make a placement recommendation by June 15. (Tr. p. 256-257).
[6] The fact that could be grouped with children with a classification of was not a valid basis for rejecting the proposed site. The law only requires that the grouping be limited “to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals”. 8 NYCRR 200.6(a)(3)(i).