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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: April 24, 2014
May 19, 2014
Actual Record Closed Date: June 27, 2014
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2014
Attorney — Student
Attorney — Student
School Psychologist Grammar School (Via Telephone) — Student
DR., Head Grammar School (Via Telephone) — Student
Attorney — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEAREDON MAY 19, 2014
Attorney — Student
Attorney — Student
Parent (Via Telephone) — Student
Attorney — DOE
The ., requested an impartial hearing on January 6, 2014 for the purpose of seeking funding for their unilateral at (hereinafter “ ”) for the 2013/2014 school year.
I was designated to hear this matter on February 4, 2014, after the prior hearing officer recused. A hearing was held on April 24 and May 19, 2014. The compliance date was extended on four occasions, due to the unavailability of witnesses, and extensive testimony. The final compliance date is July 8, 2014. (IHO Ex. I, II, III, IV).
old girl with a classification of . Her classification is not in dispute. (Department of Education (DOE). Ex. 1). She has attended for the . (Par. Ex. I).
Ms. the and District Representative who participated in the challenged May 12, 2013 Individualized Education Program (IEP) meeting, testified that the Committee on Special Education (“CSE”) reviewed the evaluation, a evaluation, a physical therapy evaluation and a classroom observation which she conducted. (Tr. p. 38). The Cooke Center also provided progress reports. (Tr. p. 39).
Testing revealed that functions in the very low range cognitively; that her functioning in the grapho-motor domain is within the low borderline range and that academically she has significant deficits in all academic areas, with a relative strength in spelling. It was reported that she requires to task in order to focus adequately on learning tasks. She showed deficient attentional functioning. A special seating arrangement was recommended. (DOE Ex. 10, p. 5). In an Occupational Therapy (“OT”) evaluation, it was reported that she has great difficulty with writing and moving her body smoothly skills. OT was recommended three times per week for thirty minutes. The recommended group size was not indicated. (DOE Ex. 7). On a evaluation, she performed in the first percentile for her age group. It was recommended that she receive Therapy (“SLT”) . The evaluator did not recommend a specific amount of therapy or group size. (DOE Ex. 8). On a physical therapy (“PT”) evaluation, she presented with difficulties with motor planning and processing. She was recommended once per week. (DOE Ex. 9).
During the 2012-2013 school year, provided with related services of SLT once per week in a group of three and once per week in a group of two; PT, once per week in a a group of two; per week individually and once per week in a group of six 2, once per week in a group of two. (DOE Ex. 5, p. 1).
The results of all of the testing is summarized in the IEP. (DOE Ex. 1 p. 1). The IEP also summarizes the information provided by ’s teacher. It was reported that she had about 25 sight words and had learned short vowel sounds; with wh questions and telling key points in a story. She could write a 4 to 5 word sentence; and could write her name in capital letters. In math, she was working at a first grade level. It was noted that she functioned best in a small group, and needs support to stay focused during whole group activities. (Id. at 2). Physically, it was reported that has motor planning and processing delays and that OT skill sets are areas of weakness. It was reported that she needs sensory breaks throughout the day. The IEP lists 17 management needs, including , repetition, redirection, and small group instruction. (Id. at 3).
An IEP meeting was held on May 22, 2013, resulting in a recommendation to place in a special class (District 75) with staffing ratio and related services of SLT once per week individually and once per week in a per week individually and twice per week in a group; , once per week in a , once per week in a group, all on a twelve month basis. The IEP includes goals for , , and academic goals for reading, writing and math. (DOE Ex. 3).
The sizes of the groups for the therapies were not indicated; however Ms. Fochetta, , testified that groups range in size from two to six students; to be determined by the clinician. She testified that neither the parent representatives challenged the group services. (Tr. p. 43). The IEP was to be implemented on July 1, 2013. (DOE Ex. 3,
p. 1).[3]
2 Ms witness, testified that the group of six is a large movement class, not a therapy session.
While noting that requires a lot of adult support due to her significant developmental delays, Ms. testified that the recommended placement in a District (twelve month program) program provides that support, and that would have been able to make progress in that setting. She testified that the program provides opportunities for small group work. (Tr. p. 41). She testified that although her writing is slow and laborious, can write. (Tr. p. 60). She stated that the parent representative disagreed with the recommended staffing ratio. (Tr. p. 64). [4]
On June 25, 2013, the DOE issued a Final Notice of Recommendation recommending a special class (D75), with related services Class V01. (Par. Ex. E). The DOE did not present a witness from the recommended site.
On August 23, 2013, the parent’s attorneys sent a letter to the CSE stating that the parents disagreed with the May 22, 2013 recommendation because of the class size, ’s inability to meet her goals in the recommended program, the large school environment and the inappropriateness of the grouping at the school. The parents stated that if an appropriate placement is not found, they will unilaterally place at and seek funding. (Par. Ex. A).
In her affidavit, Mrs. ’s mother, swore that the signed a contract for to attend for the 2013-2014 school year, with a tuition of $55,125.5 She did not state that she has made any payments toward the tuition. The parents’ household income for 2013 was $83,436. (Par. Ex. I). She further swore that at the May 22, 2013 IEP meeting, she objected to the recommended program because she felt it provided insufficient academic support. When she received the IEP in the mail, it did not include an implementation date or group sizes for related services. By the time she received the Final Notice of Recommendation, the summer school break had commenced, and she could not visit it until the fall. She had visited the school in two prior school years, when it was also recommended. (Id). . During the last two years, she has improved in her handwriting, reading and writing; and requires less redirection. She swore that needs four adults in the room in order to make academic progress. (Id.). At the hearing, however, she testified that she did not object to the 12:1:1 ratio, because that is what she receives. What she did object to was the placement. (Tr. p. 142).
She testified that she did not ask the CSE what it meant by group services; because she knew what it meant. (Tr. p. 139). She testified that the CSE continued its recommendation of a program, which had also been recommended in prior years. (Tr. p. 141). She understood that the recommended program was a twelve month placement; and that was eligible for a spot starting in July. (Tr. p. 141).
, testified that she has a Master’s Degree in education teacher with graduate credits in special education and school psychology. She is a consultant to attending team meetings and site visits with parents. (Tr. pp. 74-75). She attended the May 2013 IEP meeting as a representative of the school. ’s teacher also participated by telephone. (Tr. p. 76). Ms. agreed with the academic management needs, as described in the IEP, but testified that the recommended program would not provide sufficient support. She was concerned that the recommended program would not provide an appropriate grouping for of students with good Tr. pp. 80-82).
She testified that at the time of the May 2013 IEP meeting, was being educated in a class with twelve students, one teacher, one assistant teacher, and two paraprofessionals. She received math instruction in a group of seven students and three adults; and English Language Arts in a group of up to four students. The students ranged in their abilities from late kindergarten to second grade. (Tr. pp. 92-93). consists of approximately 100 students in grades kindergarten through eight. All of the students have IEP’s. (Tr. p. 107).
She testified that ’s progress was very slow in the 2012-2013 school year, due to her memory and attention issues. During the current school year, she has increased her sight word vocabulary and worked on her phonetic skills. She in . Her comprehension . (Tr. p. 94). She can three step problems. She is about what she help and punctuation. (Tr. p. 95).
She did not recall objecting to any of the related services which were recommended. (Tr. p. 82). She testified that in any group larger than (Tr. p. 85). She does not recall objecting, at the IEP meeting, that the size of the group for related services was not indicated in the IEP; or stating that a group size greater than two would be problematic for . (Tr. p. 99).
Ms. Tuttle accompanied the parent on a visit to the recommended site on September 17, 2013; but had to leave before the parent got to observe the class. She submitted a report describing what the teacher had told her and the parent in a prior school year. She wrote that there are currently ten students in the class, aged seven to ten; and that none of the were classified . They were told that there was space available in the schedules of the therapists for ’s related services. She reported that there are no sensory areas in the classroom was assigned to; but that when asked last year, the teacher said he would try to follow through with any suggestions from the therapists. She reported that there are 125 students in the school; with three schools in the building. The students in the recommended school come through their own entrance. (Par. Ex. C).
Dr. , the head of the , testified that he has a Master’s Degree in special education teacher and a doctorate in psychology, and worked for the Department of Education for approximately twelve years. (Tr. pp. 111-112). Dr. testified that presented with difficulty with language processing, attention deficits, language impairment and requires a . He does not feel the 12:1:1 program would provide her with the appropriate level of support. Her classroom has two teaching staff (one certified in special education; and another who has or is working toward a master’s degree); and two paraprofessionals. She requires support for transitioning between classes. (Tr. pp. 114116). The school has on , occupational therapists and physical therapists. (Tr. p. 119).
Dr. Tabone described ’s progress during the 2012-2013 school year. (Tr. p. 117). A progress report for the 2012-2013 school year was also received in evidence (DOE Ex. 5); however there was no documentation from the school regarding ’s program or progress during the 2013-2014 school year.
DEPARTMENT OF EDUCATION POSITION
The Department of Education’s (“DOE’) position is that it offered a Free Appropriate Public Education (“FAPE”) , that the parents failed to establish that the is an appropriate placement and that the equities favor the DOE. The DOE argues that the recommended group therapies were appropriate and that the failure of the IEP to indicate an implementation date was without significance. The DOE pointed out that the parents failed to submit any objective evidence of ’s progress; or any evidence that the school meets her related services mandates. (IHO Ex. V).
PARENT’S POSITION
The parent’s position is that the May 12, 2013 IEP was inappropriate because (1) group sizes for related services were not indicated, in violation of 8 NYCRR 200.4(d)(2)(v)(b)(2); (2) because the IEP lacked an implementation date, in violation of 8 NYCRR 200.4(d)(2)(v)(b)(9); and (3) because staffing ratio was inadequate. The parent further argues that the recommended site is inappropriate because it lacks a sensory area, because would be there for one year only (in grade five); and because the tardiness of the Final Notice of Recommendation affected the parent’s ability to make a placement decision. The parent an appropriate placement, and that equitable considerations support the parents’ request for funding. (IHO Ex. VI).
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]. Special education and related services must be provided in the least restrictive setting consistent with the child’s needs. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998).
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 also implement the IEP, which includes offering placement in a school that can fulfill the requirements set forth in the IEP. D.C. ex rel, E.B., v. New York City Department of Education, 61 IDELR 25 (U.S.D.C., S.D.N.Y. 2013); See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
APPROPRIATENESS OF IEP
I find that the CSE’s recommendation of a 12:1:1 program, with related services of and counseling is consistent with the recommendations contained in the recent evaluations, as well as the 2012-2013 progress report. Although benefits from the higher staffing ratio at the , I credit Ms testimony that could progress in a setting, which would also provide opportunities for small group work. Moreover, despite the testimony form witnesses that required more adult support than what was recommended, the parent did not dispute the recommended staffing ratio, in her testimony.
I do not find that the CSE’s failure to specify the size of the groups for the related services rendered the IEP invalid. The IEP provided a combination of individual and group services for OT and SLT, and group services report indicated that she was receiving OT in a group of six; and that her SLT sessions were in a group only. Nor did the failure of the CSE to specify the size of the groups violate 8 NYCRR 200.4(d)(2)(v)(b)(2). That regulation refers to Section 200.2(i) which refers only to a special class or resource room. Furthermore, while the IEP fails to set forth an implementation date, this omission was not significant, as everyone understood that the IEP was to be implemented in July, as part of a twelve month program. The parents did not dispute the goals.
Overall, I find that the IEP was reasonably calculated to enable to receive educational benefits.
RECOMMENDED SITE
While the DOE failed to present any evidence that the recommended program could be implemented at the recommended site, the parent’s site report (Exhibit C) confirms that there was a seat available in a class for ; and that all of the recommended related services were available and could be provided. The recommended school was similar in size to ’s private school.
For all of the foregoing reasons, I find that the DOE satisfied its burden of proving the appropriateness of its recommendations.
APPRORPAITENESS OF PARENTAL PLACEMENT
Even if I were to find, however, that the DOE failed to meet its burden of proof, the parent’s claim for funding for the 2013-2014 school year must be denied, because they failed to 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).
Although the record is clear that requires related services of and that they were provided to her in the 2012-2013 school year, no evidence was presented that she continued to receive these services at during the 2013-2014 school year.
Furthermore, the parents failed to present any documentary evidence of ’s program or progress during the 2013-2014 school year.
ORDER
For all of the foregoing reasons, it is hereby ordered that the parents’ claim for tuition reimbursement for the 2013-2014 school year is denied.
Dated: July 2, 2014 Dora Lassinger mv
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Ten Day Notice 8/23/13, 3 pages B IEP, 5/22/13, 21 pages C Final Notice of Recommendation Placement Site, 9/17/13, 3 pages D IEP Meeting Minutes 5/22/13, 6 pages E Final Notice of Recommendation 6/25/13, 1 page H Quality Review Report 2011-2012
DEPARTMENT OF EDUCATION
1 Due Process Complaint 1/6/14, 6 pages 2 Due Process Response 1/9/14, 4 pages 3 IEP, 5/22/13, 17 pages 4 Meeting Minutes 5/22/13, 2 pages 5 Progress Reports March 2012, 24 pages 6 Adaptive Behavior Assessment System, 12/19/12, 16 pages 7 Occupational Therapy Evaluation 1/7/13, 6 pages 8 Evaluation 1/8/13, 6 pages 9 Evaluation 12/21/12, 10 pages 10 Evaluation 12/14/12, 8 pages 11 Classroom Observation 1/8/13, 2 pages
IHO
I Case Follow-Up Sheet with Attachment, 2/7/14, 2 pages II Case Follow-Up Sheet with Attachment, 3/14/14, 2 pages III Case Follow-Up Sheet 4/24/14, 1 page IV Case follow up sheet, dated 5/19/14, 1 page V DOE Closing Brief, 6/23/14, 15pp VI Parent’s Closing Statement, 6/24/14, 17pp VII Subpoena, 4/11/14, 2pp
Footnotes
[1] In their complaint, the parents challenged the May 22, 2013 IEP. They alleged, among other things, that the (1) the recommended staffing ratio fails to provide sufficient support ; (2 the placement offer was untimely (3) the IEP could not be appropriately implemented at the recommended site due to the wide range of disabilities and functional levels, and the lack of a sensory area and because would only be able to attend the school for one year (in grade five); and (4) that the IEP lacked an implementation date . The IEP goals were not challenged. (DOE. Ex. 1; Tr. p. 84).
[3] The IEP submitted by the parent did not include an implementation date. (Par. Ex. B). Ms. testified that she may have printed out the IEP without the implementation date, and mailed it to the parent; however the CSE indicated that it was recommending a 12 month school year. (Tr. p. 69). Ms. Tuttle, the Cooke Center witness, testified that she understood this to mean that the implementation date was July 1. (Tr. p. 105). Ms. stated that the IEP was finalized, and the implementation date inserted, before a final notice of recommendation was generated. (Tr. p. 70).
[4] In the Spring of 2013, Ms. participated in approximately 100 IEP meetings students. (Tr. pp. 101-102). She did not agree with the DOE’s recommendations in any of those meetings. (Tr. p. 105) The contract was not introduced into evidence.