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: May 13, 2014
May 27, 2014
Actual Record Closed Date: July 1, 2014
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 13, 2014
Advocate — Student
Parents
District Rep — DOE
School Psychologist (via telephone) — DOE
IEP Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2014
Advocate — Student
Mother — Student
Program representative - by phone — Student
CSE Representative — DOE
Ms. , the mother of an impartial hearing on January 31, 2014, seeking funding for her unilateral placement a private school, for the 2012/2013 school year.[1] I was designated to hear this matter on February 3, 2014, pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on May 13, 2014 and May 27, 2014. The compliance date was extended on three occasions, due to the unavailability of witnesses, and extensive testimony, with a final compliance date of July 15, 2014. (IHO Ex. I, II, III, IV,).
old girl with a classification Impairment. (DOE. Ex. 2). Her classification is not in dispute. (Par. Ex. A). She had ; and was evaluated by the Department of Education (“DOE”) and recommended for a special class. (Tr. p. 137). She has attended since the (Tr. p. 139).
On April 24, 2012, when evaluation was performed by the Department of Education (“DOE”). (DOE Ex. 6). It was attending a small class (12:1:1 ICHUD program) within , and receiving related services of occupational, speech, physical therapy and counseling.
She earned a Full Scale , in . Her academic skills for reading comprehension ( grade equivalent for letter and word recognition); for math computation ( grade equivalent for math concepts and applications). Her writing skills were below expectations. She was described suggested immaturity and potential for acting out behavior. skills were below expectancy. (DOE Ex. 6).
On November 30, 2011, Mrs. special education teacher, reported that she was functioning on a beginning ; and that she usually understands oral directions; but may need them repeated. , it was reported that she has a hard time accepting her learning differences, and will request work that is too hard for her to complete. It was recommended that she remain in a self-contained setting. (DOE Ex. 3).
reported that she in connection with going to mainstream classes, doing class work and projects. Nevertheless, she felt she was able to attend mainstream classes full time; and that she was not attending mainstream classes on a full-time basis. It was reported that she was progressing academically, with much support was also obtained at the recommendation of was exploring the possibility in more mainstream subjects to ease her , and to be able to determine (DOE Ex. 4). therapist reported that while she had made progress in , she made minimal progress in improving her vocabulary, language skills, and that she continued to need many repetitions to answer questions. (DOE Ex. 5).
In a letter dated May 17, 2012, , her , requested goals remain unchanged, as she had just started their therapies less than four weeks earlier. (DOE Ex. 9, DOE Ex. 2, p. 3).
On May 15, 2012, the Committee on Special Education (“CSE”) met to review program. Dr. , a , who also testified at the hearing, . (Tr. p. 13; DOE Ex. 2, p. 14). ,a special education teacher, served as the District Representative and special education teacher. (Tr. p. 15; DOE Ex. 2, p. 14). 2 , the student’s classroom teacher, mother and her advocate all participated by phone. The team also included a parent member. (Id. at 14). The Individualized Education Program (IEP) states that the parent was concerned about whether a class with 22 to 24 students would be too large; but that it was explained that the class has two full-time teachers. (DOE Ex. 2, p. 12).
Dr. testified that the team reviewed teacher progress report, counseling report and eport. (Tr. pp. 16-17). The CSE also reviewed an April 2011 auditory processing evaluation, which said that system to reduce the stress of listening and improve signalto-noise ratio, as well as to . (DOE Ex. 2. at 3).
The May 15, 2012 IEP summarizes Grace’s academic and language abilities, as reported in the April 2012, , by the student’s teacher and (DOE. Ex. 1, p 1-2). Socially, the IEP noted experiences needs; and that recommended that she spend more time in mainstream classes with support. (Id. at 2). The parent reported that Dr. Wilbur believes Ms. Fuchs is also a general education teacher, but he was not sure. (Tr. p. 42). doesn’t know how to act with friends, that she has in an , and often withholds her . (Id. at 2).
Physically, it was reported that receives to address her and ; and therapy to address delays with awareness. Her and unit . (Id. at 3).
Dr. that academic goals were discussed at length. (Tr. p. 59). Grace’s IEP includes goals for developing vocabulary level; improving listening comprehension, ; develop reading comprehension skills; increase ability to understand appropriately express feelings; improve listening and focusing abilities with the use of an FM unit; improving expressive social /emotional goals of experience a strong self of selfimportance; and additional writing goals of responding to literature with the use of multi-sensory stimuli and graphic organizers. (Id. at 4-8).
The CSE recommended placement in an Integrated Co-Teaching Class for ELA (8 times per week), Math (eight times per week), Social Studies, (5 times per week) and Science (5 times per week). Related services ”) , three times per week individually, Physical Therapy (“PT”) , twice per week individually (“OT”) , twice per week individually, once per week individually and once per week in a group) were also recommended. (DOE Ex. 2, at 8-9). Dr. hat the team felt that the ICT program would be beneficial be with general education (sixty percent) as well as special education students (forty percent), with the support of two teachers (one general education ,and one special education) in the room, and all of her related services. An FM unit was also recommended. It was felt that the ICT program is appropriate because intellectual abilities are within the average range; and because she had negative feelings toward special education. (Id. at 22-23, 31). It is not expected that the special education students in the class will be on grade level. (Tr. p. 32). Dr. believed that ICT classes had approximately 20 to 22 students during that time period. (Tr. p 55).
Dr. testified that the academic goals were based upon report, the teacher progress report, and the input of the parent and teacher. (Tr. p. goals were based upon the counselor’s report, with the input of teachers and the parent; and that goals are always reviewed during the meeting. (Tr. pp. 24-25). The level of was continued at twice per week, as indicated . (Tr. p. 37; DOE Ex. 4). He did not recall any objections to the level of SLT. (Tr. p. 39). The level of OT was kept the same, based upon the letter stating Grace had just started her therapies. (Tr. p. 48) .
Dr. Wilbur did not recall any discussion of the extent was participating in the mainstream at her school; and what if any supports or strategies she required. (Tr. p. 44).
On August 8, 2012, the DOE offered Teaching Class with related services of Counseling, , . (DOE. Ex.11).
, a certified special education, testified that she is employed as the IEP teacher at the recommended site. (Tr. p. 67). She testified that in September 2012, the school had two ICT classes , and had a seat available. The school had on staff , an ; and students with FM units. (Tr. pp. 69-70).
Ms. testified that she gave the parent a tour of the school on September 10, 2012. (Tr. p. 72). They went to visit a seventh grade ICT science class. There were 31 students present. (Tr. p. 75). 3The parent level, Grace would fit the profile of the ICT classes; where students are often better in one subject, and deficient in another. She testified that the school would address the student’s individual needs, as described in the IEP. (Tr. pp .77-78). She testified that the school could provide all of the services recommended in Grace’s IEP; and that the school has students which fit her profile. (Tr. p. 78). She testified would be departmentalized, with students going to different classes; but there would always be two teachers in the class. (Tr. pp. 82, 85).
Ms. , testified that she participated in the IEP meeting with her advocate, but was confused by the CSE’s recommendation. She discussed. (Tr. pp. 140-141). During the time period of the disputed IEP meeting, Grace wanted to be in a mainstream class, and to be like everybody else. (Tr. p. 140). After she received the final notice of recommendation, she called the school but could not get through; so she just went to the school in the second week of September. (Tr. pp. 142-143). She observed that the recommended class was large, with some special education students; but mostly mainstream students. She felt have . p. 144). It appeared to her that the work was
She testified that the number of students that could be placed in the class was capped at 32. (Tr. p. 80). beyond Grace’s ability, and would have to be modified for her; but she did not know specifically where the other students functioned academically. (Tr. pp. 144-145, 151).
On August 13, 2012, the parent signed a contract 2012-2013 school year, at a cost of $34,000, with an additional cost of $9,000, for related services for a total cost of $43,000. (Par. Ex. L, M). As of the hearing, the parent had not made any payments toward the tuition, as she has a son school was . (Tr. pp .146-147). In 2012, the parents reported adjusted gross income of $18,222.00. (Par. Ex. N).
On August 15, 2012, the parent sent a letter to the CSE stating that she was unable to observe the recommended placement, because it was not in session; and provided notice that she would seek funding for her unilateral placement (Par. Ex. E).
Ms. that during the 2012-2013 school year, Grace progressed socially and academically. She was pleased that she was mainstreamed in science and history. (Tr. p. 149).
that she is licensed in special education. (Tr. p. 92). Ichud provides selfcontained classes and related services attended a seventh . (Tr. pp. 92-93).
delays, and difficulty with , which makes it difficult for her to attend in a large group. She is also very anxious, and has difficulty (Tr. pp. 95-96). At the start of the 2012-2013 school year level, and her reading level. She was placed in mainstream history and science classes with pre-teaching, re-teaching and support for vocabulary from the therapist. (Tr. pp. 97). These subjects were selected for mainstreaming based upon interests, and her ability to memorize information. (Tr. p. 108). The teacher of her self-contained class communicated with the teachers of the mainstream classes. (Tr. pp. 103-104). Within her self-contained class of seven students, she received instruction for reading and math, to address -solving. (Tr. pp. 98-99). She was placed with students with similar functional levels. (Tr. p. 100). She was in all day, except when she was mainstreamed for history and science. (Tr. pp. 119-120).
For math, the , with focus on operations, fractions, decimals, measurements and problem solving. For reading, trade books skills and inferential comprehension. (Tr. p. 101).
or four times each week with a certified therapist. (Tr. p. 105). She received counseling with a licensed counselor, one hour each week. (Tr. p. 106). In addition, the teachers and therapists consulted with an outside behaviorist to work on conversational skills and eye contact. (Tr. p. 107).
Ms. estified work in her mainstream classes. (Tr. p. 108). No report card was offered into evidence, although that report cards were issued there times each year. (Tr. p. 115). In a school progress report dated January 30, 2013, it was reported that in math, on calculation for math application. In writing, it was reported that she can write expressively but has difficulty due which compromise her ability to perform to her full potential. (Par. Ex. G).
In a speech therapy progress report dated February 22, 2013, her therapist reported minimal progress. She reported that at the end of last year, Grace’s teachers and therapists noted a change in her behavior; that she was uncooperative and presented with a smile that seemed “blank”. During the current school year, her behavior became even more exaggerated, uncooperative and inappropriate. She was so uncooperative in individual sessions, it was determined that she should be seen in group sessions only, using more behavior modification techniques. It was reported that her vocabulary is poor, that she has poor eye contact and difficulty staying on topic. It was reported that she had made minimal progress in improving her behavior and cooperation in the session alone or with a peer, and her affect appears to be “off”. (Par. Ex. H).
When questioned about this that a team consisting of the teacher and therapist developed a behavior modification system ; which Ms to her difficulty with the demands . She testified that she instructed the therapist to the vocabulary for her mainstream classes instead. (Tr. pp 130-131).
In a counseling progress report dated April 15, 2013, it was reported that the services of a behavioral specialist had been employed to some positive progress. A full evaluation was suspected of being on . During group sessions, she was oblivious to discussions of feelings. Her incoherent, and her thought processes were described as unfocused. (Par. Ex. I). Ms. that the parent had begun the process for a evaluation. (Tr. p. 132).
had two teachers during the 2012-2013 school year. Her morning teacher, Ms. is not certified; and does not hold a college degree. The teacher for her other subjects, Ms was a certified special education teacher. The morning teacher in various religious subjects (Prayer; Bible Study, Prophets and Jewish Law). (Tr. p. 111, 124, 126-127; Par.
Ex. F). [4]
Ms. that, in her opinion, it would be to learn in a large class for the whole day, due to auditory processing difficulties, and her sensitivity about receiving help. (Tr. p. 119). DOE Position
The DOE’s position is that the IEP and recommended class an appropriate program, and that the parent failed to prove the . The DOE pointed out that there was no documentary evidence Finally, the DOE argued that equitable considerations do not support an award of tuition reimbursement. (IHO Ex. V. Parent’s Position
The parent argued that the DOE failed to prove that the recommended ICT program met . The parent an appropriate placement and that equitable considerations support the parent’s request for reimbursement. (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].
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).
I find that the DOE failed to prove that the CSE review team was duly constituted. There was no proof that the CSE review team included a general education teacher member, although CSE recommended a program which combined general education and special education. This procedural defect was significant, as the IEP team was unable to give the parent an accurate description of the recommended program thought that ICT classes consisted of 20-22 students, and the record indicates that this was communicated to the parent. The IEP states that the parent believed classes would consist of 22-24 students, which she felt would be too large. Ms the witness from the proposed site, testified that ICT classes could have 32 students.
Substantively, the DOE failed to meet its burden of proving the appropriateness of an ICT class record indicates that despite her , processing She also has . psychologist felt she might be on , and recommended a . ’s special education teacher recommended that she remain in a self-contained setting. wished to be mainstreamed, and her psychologist supported mainstreaming her to some extent; clearly she required support to do so. The IEP fails to describe a sufficient level of support for Grace.
I find that the combination of procedural and substantive inadequacies caused a deprivation of educational benefits and rose to the level of a denial of FAPE. See C.F. v. New York City Dept. of Educ, . No. 11-5003-CV 2014 U.S. App. Lexis 4085 (2d Cir. March 4, 2014). 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).
Although I share the DOE’s concerns that the parent failed report cards, and only limited progress reports, I find that the parent’s decision to place reasonably calculated to meet her unique needs. As s program consisted of placement in a small, self-contained class of seven students for the majority of the day, with mainstreaming for history and science, with support. This program was consistent with the teacher and psychologist. For her afternoon (and Friday morning) secular subjects by a certified special education teacher. The record indicated some progress in math, level, and in history and science during the course of the 2012-2013 school year.
certified professionals. The record indicates that the school instituted a behavior modification program to address
I do not find that the instruction provided morning teacher, which consisted mostly of religious instruction, was specialized instruction reasonably calculated to meet her unique needs. The teacher was not a college graduate. For the portions of the morning program which were not religious instruction (study skills, Hebrew language and grammar and Jewish philosophy), no evidence was presented as to how the instruction addressed s unique needs, including her significant ; and what progress she made in those subjects. I find that the special education portion of her program consisted of 1,165 minutes per week or 58% of the school week, (see footnote 5); plus the related services of speech language therapy and counseling, for which the parent is responsible for an additional charge of $9,000.00. Equitable Considerations The record indicates that the parent cooperated with the CSE by participating in the CSE review, expressing her concerns about the size of the proposed class, and by visiting the proposed site.
Order
For all of the foregoing reasons, it is hereby ordered that the DOE shall directly fund 58% of ($19,720) plus the additional charge for related services of Therapy and Counseling ($9,000) for a total of $28,720. Dated: July 11, 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 Impartial hearing request, 1/31/13, 5 pages B Program description, 1 page C (Deleted) D Final notice of recommendation, 8/13/12, 2 pages E 10-day notice, 8/15/12, 2 pages F Class schedule, 2012-2013, 1 page G School progress report, 1/30/13, 2 pages H progress report, 2/22/13, 2 pages I progress report, 4/15/13, 2 pages J Related services affidavit, 6/25/13, 2 pages K Tuition affidavit, 8/29/13, 1 page L Enrollment contract, 8/13/12, 1 page M Addendum to contract, 9/5/12, 1 page N Form 1040, 2012, 2 pages
DEPARTMENT OF EDUCATION
1 (Deleted) 2 IEP, 5/15/12, 14 pages 3 School progress report, 11/30/11, 1 page 4 progress report, 1/1/12, 3 pages 5 therapy report, 1/10/12, 1 page 6 evaluation, 4/24/12, 3 pages 7 (Deleted) 8 (Deleted) 9 Letter from , 5/17/12, 1 page 10 Events for student from April 20, 2012 to August 19, 2013, 4 pages 11 Final notice of recommendation with notes, 8/8/12, 2 pages
IMPARTIAL HEARING OFFICER
I Prehearing conference summary, 3/4/14, 1 page II Case follow-up sheet, 3/4/14, 1 page III Case follow-up sheet, 5/13/14, 1 page IV Case follow-up sheet dtd 5/27/14, one page. V DOE Closing Statement, undated, 4pp VI Parent’s Closing Statement, 6/30/14, 10pp
Footnotes
[1] In her due process request, the parent alleged, among other things that the IEP team was not duly constituted, that the recommended staffing ratio was insufficient; that the related services mandates are inadequate; that the parent and the student’s teachers did not meaningfully participate in the development of the IEP, including the development of the IEP goals; and that the student’s needs could not be met in the recommended program. (Par. Ex. A). The parent disputed the recommended amount of all of the related services, except for physical therapy. (Tr. p. 34).
[4] s morning schedule also included Hebrew Language and Grammar, Jewish Philosophy and Study Skills, which, according to Ms. record indicates that Ms. from 8:45 A.M. until 12 (a total of 13 hours, 780 minutes), from Monday to Thursday, and that on Fridays, 50 minutes in the morning was devoted to Prayer. The entire duration week, is 33 hours and 15 minutes (a total of 1995 minutes).