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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 28, 2014
May 20, 2014
Actual Record Closed Date: June 15, 2014
Hearing Officer: Dora LAssinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2014
Parent Advocate — Student
Parents
CSE- Chairperson's Designee — DOE
FREDA STEINBERGER, School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 20, 2014
Advocate — Student
Parents
Principal of School, (Via telephone) — Student
School Psychologist and Chairperson Designee CSE- — DOE
Ms. , the parent requested an impartial hearing on January 13, 2014 seeking funding for her unilateral placement , a private school, for the 2013/2014 school year. [1] I was designated to hear this matter on December 17, 2013 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on March 25, 2014 and May 27, 2014. The compliance date was extended on four occasions, due to the unavailability of witnesses, and extensive testimony, with a final compliance date of June 29, 2014. (IHO Ex. I, II, III, III, IV).
year old student with a classification of of Education (DOE) Ex. 1). Her classification is not in dispute. (Par. Ex. A; Tr. p. 104)).
On February 8, 2013, student at , a social history update evaluations were performed by , a certified school psychologist, who also testified at the hearing. (DOE Ex. 4, 5). s mother reported was and that she is prescribed other . She was progressing ; however she . (DOE Ex. 4).
earned a Full in the ; but Borderline scores for Perceptual Reasoning and Processing Speed, indicating that she may have potential for higher cognitive functioning. (DOE Ex. 5, at 4-5) On the Woodcock Johnson III Tests of Achievement, for passage comprehension; for fluency (both in the Borderline range). She achieved average scores for word attack and letter word identification. In math, s scores were at the level for fluency and applied problems and level for calculation. (Id. at 9). Her written language scores were ) for writing fluency. She was able to follow the basics of grammar, spelling, capitalization and punctuation, but needed improvement in varying sentence structure, increasing the richness of vocabulary and providing more details. (Id. at 11-12).
In a vocational assessment, she stated that she was considering careers in teaching, law, or as an FBI agent. She stated she would have to go to college. , she was described as a , and academic demands. She was observed to . (Id. at 12).
In a report with a fax date of March 13, 2013, could decode on a 6th/7th grade level; but that her comprehension was difficult to ascertain due to her inconsistent level of concentration. For math, she was also estimated to level, making numerous careless mistakes due to . Her stated goal was to attain greater emotional stability, with the school working closely . She was described as “wildly creative”; but as having weak social comprehension. (DOE Ex. 3).
On March 18, 2013, the Committee on Special Education (“CSE”) met to review . Ms. , a certified school psychologist who also served as the District Representative, Kim Brantley, a special education teacher assigned, mother, counselor, and Rachel Shemah, an educational advocate, participated in the meeting. (DOE Ex. 1, p. 18; Tr. p. 16). The CSE recommended placement in a special class in a community school (15:1), for academic and non-academic subjects, with related services , twice per week individually and once in a group, and twice per week individually. (DOE Ex. 1, p. 10).
The March 18, 2013 Individualized Education Program (IEP) summarizes the results of the testing, as well as the information provided and , with regard to her academic functioning and social/emotional development. While it was tends to fabricate fantasy like stories, and that she is it says nothing about or the fact that she receives medication for her mood. ’s academic management needs, as described in the IEP, include a small class to , to help with her , therapy, a multisensory approach, structuring and breaking down the work to manageable units; repetition and review; use of planner, color coded folders, graphic organizers and outlines. ( DOE Ex. 1. at 1-3).
’s IEP includes goals for reading comprehension (responding either orally or in writing to three open-ended questions; correctly answer literal and inferential comprehension questions ); math (addition of fractions with unlike denominators; solving mathematical word problems requiring two-step operations; and problems which require exclusion of extraneous information); writing (expand writing skills in one-page response essay; compose essay in three paragraph form with topic sentence; transitions and a conclusion, with accurate grammar.) (Id. at 5-7).
To address needs, her IEP includes goals for improving her social skills in conversations; demonstrating improved by stating two things she does well, two skills in which she has improved and two skills in which she would like to improve; improve attention; demonstrate an improved ability to . (Id. at 7-8). The IEP also included two speech/language goals (listening and attending to five critical thinking questions and responding; expanding vocabulary and associative thinking and demonstrating improvement in processing by correctly responding to questions in 7 out of 10 opportunities. The criterion for determining whether the goals have been achieved is stated to be 80% accuracy. (or 3 out of 4 trials for certain math skills). Progress was to be measured quarterly through teacher made materials, teacher or provider observations, portfolios and standardized tests. (Id. at 5-9). The IEP includes to learn about and function in a post-secondary setting; methods of becoming familiar with different kinds of post-secondary educational opportunities; and provides for related services, community experiences and development and post-school adult living objectives. (DOE Ex. 1 pp. 4-5 ;12-13 Ms. Steinberger testified that she drafted the goals, taking into account the concerns expressed by the principal and teacher. (Tr. p. 26-27).
On June 15, 2013, the DOE offered Mazal a placement in a special class with related at 29Q440. (DOE. Ex. 2). The DOE failed to present any proof regarding the recommended site.
Ms. mother, testified that she attended the March 18, 2013 IEP meeting and expressed her disagreement with the recommended program, as being too big to meet . (Tr. p. 96-97). She did not disagree with the IEP goals or with the recommended related services. (Tr. p. 103).
She testified that , every two to four weeks, and takes medication to help her focus and to balance her moods. (Tr. pp. 97-100). She also sees a once per week. The believes makes statements that are not based in reality in order to get attention. (Tr. pp. 97-99).
On August 13, 2013, the parent, through her advocate, sent a letter to the CSE rejecting the IEP as being deficient because it fails to address , and because the recommended staffing ratio is inadequate, and stating her intent to place and seek public funding . (Par. Ex. D).
The parents signed an undated contract for the 2013-2014 school year, at a cost of $33,000. plus $100 as a book and locker fee and $650 for trips, shabbaton, chagigas).2 The parent agreed to pay an additional fee of $55.00 per session for counseling services. The contract does not state when payment must be made. (Par. Ex. H). Ms . testified that she has made payments totaling approximately $7,000. toward the tuition. (Tr. 101). In prior years, she has paid $5,000. or $6,000. towards s tuition. (Tr. p. 111). In 2012, the parents’ adjusted gross income was $25,597. (Par. Ex. K).
Ms. testified that during the current school year, has progressed in her ability to be responsible for her homework and in her life skills. (Tr. p. 102).
the principal , testified that he is licensed in New York as special education teacher; and holds a separate license from the Jewish Special Education Board of Licenses. (Tr. pp. 39-40). He holds a Bachelor’s Degree in Psychology. (Tr. p. 85). accepts students who have not fulfilled their potential in a mainstream setting. (Tr. p. 40). designs the curriculum, supervises, and regularly reviews progress with the teachers and maintains contact with the school social worker and outside support services. (Tr. pp. 41)
The school consists of 40 teenage girls, ranging in age from 11 to 18. (Tr. p. 42). range; however the major impediment to her progress is . She is seen by a psychiatrist, a private psychologist and by the school social worker. (Tr. p. 43). He testified that she has not met her potential due to significant . (Tr. p. 55).
For twelfth grade students , the focus is preparing her for life beyond high school. (Tr. p .44). Her program includes prayer and bible study daily; Jewish Laws and Customs; morality, global issues and week in review, yearbook, creative workshop, computers and current events. She receives instruction in Guidelines to Happiness (maintaining a positive outlook on life) twice each week, and Home Economics once each week, Women in Society twice each week and Life Skills (job seeking skills) twice each week. Her program also includes American History (three times each week); Global Issues (three times each week); and Science twice each week. She receives instruction in Consumer Math (banking and being a good consumer) twice each week. She receives instruction in literature twice each week. The materials read are abridged
These additional fees were not explained at the hearing. versions of books and stories. There is no indication that she receives any other instruction in reading or language arts. She receives instruction in speech twice each week, in a group, focused on public speaking. (Par. Ex. E; Tr. pp. 46-54).[3]
s class consists of eight girls, aged 17 to 18, with one teacher. (Tr. pp. 54, 56, 58, 68). The program is departmentalized; so that the students have different teachers for their various subjects. The teachers have at least a high school degree and have attended seminary programs. Some are in college programs. (Tr. p. 57). All of the students in Mazal’s class have the same subjects, at the same times; although their instructional levels may vary. (Tr. pp. 58, 70). Although some take state will not be taking them. (Tr. p. 56).
testified has a vivid imagination which at times crosses into “her perception of reality”. On a trip to Niagara Falls, she told the girls she had gone over Niagara Falls a couple of times, prompting a call to the psychiatrist and psychologist for her safety. She has also stated that she is on the staff for the police department. (Tr. p. 59). None of the other girls in her class exhibit similar behaviors. (tr. p. 77). The only psychiatric diagnosis of which ; however he stated that “the chances of her ever being totally rational in this regard is very slim”. Her concentration fluctuates. The other girls are aware that some of the things she states are ”; however they accept this as part of her personality. (Tr. pp. 59-60). this type of behavior, the teacher will or the social worker of what took place, and they will address it. The teachers can redirect her if she not paying attention. (Tr. p. 81).
She receives counseling with a licensed social worker three times each week. (Tr. p. 70). Session notes are not submitted; however, if there is something of significance, the counselor will reveal it . (Tr. p. 71). The record does not contain any progress report from the counselor. Although has been in touch with psychiatrist and psychologist; he could not state whether the social worker has. (Tr. pp. 75-77).
testified that he expressed his disagreement with the CSE’s recommendation that attend a class with a staffing ratio of , due to her need for (Tr. p. 62). With respect to the discussion of goals, he felt were not in her basic skills; but in her ability to focus. (Tr. p. 89). She does not receive speech/language therapy. testified that he did not see language as an The school does not have on staff. (Tr. p. 90).
’s report card was received in evidence showing passing grades in all subjects. (Par. Ex. F). There is no narrative report has progressed. hopes she will graduate this year; but this will depend on how she performs on her final exams; although she could benefit from additional tutoring or educational work. He later explained that whether she will graduate will depend upon her performance over the course of the term. (Tr. pp. 9293).
Ms. counselor submitted an affidavit showing that she provided 52 counseling sessions, through January 28, 2014, and that she anticipated providing an additional 42 sessions through June at the rate of $55.00 per session, for a total projected cost of $5,170 She did not describe her work with . (Par. Ex. G).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. The 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).
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).
APPROPRIATENESS OF THE RECOMMENDED PROGRAM
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services Application of a Student with a Disability, Appeal No. 11-043.
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a Free Appropriate Public Education (“FAPE”) only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits.
20 U.S.C. Sec. 1415(f) (3) (e) (ii).
While I find that the IEP adequately academic needs and establishes appropriate goals to address those needs, it does not adequately describe her physical development or provide sufficient support for . Although the CSE was informed that, in addition to being diagnosed with and medicated , that she is prescribed other medications to help with her mood, the IEP does not reflect this important fact. Furthermore, although her teacher reported goal was to attain stability, with the school working closely CSE failed to further . The fact is frequently irrational and reporting experiences and events which are not based in reality is not indicated in the IEP.
There is no indication that the CSE reviewed a evaluation or consulted with a speech/language therapist prior to or recommending
The record indicates that due to her emotional state concentration and focus, cannot be educated in a class, and that she requires a smaller class. Indeed, the record indicates that she may require
The DOE failed to prove that the recommended site could implement the IEP.
For all of the foregoing reasons, I find that the DOE failed to prove 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). With certain exceptions, the same criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parental placement. The issue turns on whether a placement- public or private –is reasonably calculated to enable the child to receive educational benefits. See Green v. New York City Department of Education, 50 IDELR 40 (SDNY 2008), citing Gagliardo v, Arlington Cent. Sch Dist. 489 F. 3d 105 (2d Cir. 2007). I find that the parents failed to prove that Tiferes Miriam provides educational instruction specially designed to meet the Mazal’s needs, supported by such services as are necessary to permit her to benefit from instruction.
The parent failed to prove that adequately social/emotional needs. The professional staff at the school , who is a certified special education teacher and , a licensed social worker. has not met her potential due to Although he is in contact , he was not aware of diagnosis ( ). There is no indication in the record that either or his staff is qualified to deal with her . He does now know school based counselor is in touch . There was no evidence of progress in .
Academically, I find that the parent failed to meets her special education needs. There was no testimony or documentary evidence presented as to how her reading, writing and math needs are addressed at the parental placement; and whether she has progressed in any of those areas during the 2013/2014 school year. There was no testimony as to how compares with the other girls in the class academically, except that she is not given state exams which some of the other girls take. have potential for , there was no evidence that her program is designed to prepare , which was her stated goal. The focus program appears to be non-academic. It is not clear what the criteria are to graduate.
ORDER
For all of the foregoing reasons, it is hereby ordered that the parent’s request for funding for , for the 2013-2014 school year, is denied. Dated: June 20, 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
HEARING OFFICER
I Pre-hearing conference summary, dated 2/25/14, 1 page II Case follow-up sheet, dated 2/18/14, 1 page III Case file worksheet dated 4/28/14, 1 page IV Case file worksheet dated 5/20/14, 1 page
PARENT
A Impartial hearing request, dated 1/13/14, 5 pages B Program description, undated, 1 page D 10-day notice, dated 8/13/13, 2 pages E Class schedule, 2013/2014, 1 page F Counseling schedule, dated 2013/2014, 1 page G Counseling affidavit, dated 1/23/14, 5 pages H Enrollment contract, dated 2013/2014, 2 pages I Affidavit of payments, dated 2/11/14, 1 page J Attendance record, 2013/2014, 1 page K Parents' 1040, dated 2012, 2 pages L Proof of payments, 2013/2014, 7 pages M Teachers and provider licenses, undated, 3 pages N Student report card, dated 2013/2014, 1 page
DEPARTMENT OF EDUCATION
1 IEP, dated 3/18/13, 18 pages 2 Final notice of recommendation, dated 6/15/13, 1 page 3 School report, dated 3/13/13, 3 pages 4 Social history update, dated 2/8/13, 3 pages 5 evaluation, dated 2/8/13, 15 pages
Footnotes
[1] In her due process request, the parent alleged, among other things, that the recommended staffing ratio was insufficient to address the student’s attention and concentration; that the IEP goals are overly broad; and that the recommended program could not an appropriate functional group or meet her related services mandates. (Par. Ex. A).
[3] The parent is not seeking funding for that portion of the program which includes prayer, bible study and Jewish laws and customs, which she states are religious in nature. (Tr. p. 115).