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: April 1, 2014
Actual Record Closed Date: April 16, 2014
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2014
Parents
Parents
Occupational Therapist — Student
District Representative — DOE
Principal (Via Telephone) — DOE
Mrs. the mother of requested an impartial hearing on February 25, 2014 seeking funding for the education and related services of a residential program at , for the summer of 2014. I was designated to hear this matter on February 27, 2014 pursuant to 20 U.S.C. Section 1415(f)(1), after the prior hearing officer recused. An impartial hearing was held on April 1, 2014.
old young man with a classification . He attends a special class ( a District program at with various related services. (DOE Ex. 1, 2). In these proceedings, the parent challenges the appropriateness of the Department of Education’s (“DOE”) recommendations for her son’s program for the summer of 2014. She does not dispute the classification or the appropriateness of the program, except for the summer programming. (Tr. p. 29; DOE Ex. 1) Her position is that the Department of Education (“DOE”) should continue to fund the education and related services of a summer residential program at New York, as it has in prior years. (DOE Ex. 1; Tr. pp. 15, 29).
The DOE’s position is that the recommended program is appropriate during the school year; and for the summer months; and that therefore the DOE is not obligated to fund the program requested by the parent. (Tr. p. 19).
On January 6, 2014, the Committee on Special Education (“CSE”) met to review program. The CSE recommended placement in a special class in a District program, with related services of Therapy (“ ”) (3 x 30 individually, and 2 x 30 in a group of two); (“ ) (3 x 30 individually), (“ ”)( 4 x 30 individually) parent counseling and training monthly, and an individual health paraprofessional, all on a twelve month basis. (DOE Ex. 2; Tr. p. 17).
In his prior 2013 Individualized Education Program (IEP), the CSE recommended that Andrew participate in , continuing his and as per IEP mandates. (Par. Ex. H). Andrew has attended the HASC summer program for the past 8 years. (Par. Ex. A).
, the principal of ), testified that she is certified as a special education teacher and as an administrator. has attended the school since kindergarten; and Ms. has known him for at least five years. (Tr. pp. 24-25). She testified that class consists of six students with autism, with a 6:1:1 ratio. He is assigned an individual paraprofessional, and receives related services of as well as adaptive physical education, all on a twelve month basis. His program is geared toward functional life activities. (Tr. p. 26).
The summer program for the Summer of 2014 will extend from July 3 to August
13. will most likely be placed with his classmates; although participation in the summer is voluntary, and some parents do not send their children; or send their children for parts of the summer. (Tr. p. 30). The school will be able to implement all of services, on site, at the school, during the summer months. (Tr. pp. 31-32). The only variation between the summer program and the program for the rest of the school year, is that the school day is six hours and 30 minutes (during the summer), rather than six hours and fifty minutes; so that the teachers only receive one prep period during the summer months. (Tr. p. 37). During the summer, the students take one trip per week to places including the zoo, the park and the Hall of Science. There are also additional assembly programs in the school. (Tr. pp. 41-42).
a licensed occupational therapist, testified that he has worked at summer program since 2008, and has been working during the last four summers. (Tr. pp. 4445). He testified that the IEP goals created by the CSE underestimate Andrew’s abilities. He stated that in working those goals are achieved in the beginning of the first week of every summer he has worked with him; and he has moved beyond those goals. (Tr. p. 46). He has not, however, written goals . (Tr. p. 51). In a progress report dated August 9, 2013, he reported that Andrew demonstrated completion of his goal the first day of the program; that Andrew consistently demonstrates bilateral function and problem solving skills; and that it is hope can be trained in assembly or disassembly. (Par. Ex. F).1 He testified that IEP goals do not even come up to “where he should be at minimum”. He testified, however, that he has not participated in IEP meetings. (Tr. p. 49). He testified that within the residential setting the opportunity to work on activities of daily living, including dressing and feeding, with carryover into the bunkhouse and the dining room. (Tr. pp. 51-52).
On November 27, 2013, the parent signed a contract in the Program for the summer of 2014. The contract required a non-refundable deposit of $2,500. (Par. Ex. B). The tuition for the program is $6,000 for the academic and therapy portion; and $6,500 as the camp fee, for a total of $12,500. (Par. Ex. J).
Mrs. . testified that within the camp environment, stamina is increased through walking through the large campus and swimming. His listening skills improve as the counselors talk to him all of the time. She testified that while she works , she can not provide the same carryover as is available in the residential setting. (Tr. p. 53).
In a letter dated March 11, 2014, pediatrician wrote that has attended program for the past 8 years, and described how the program allows grow, flourish and prepare himself for his transition into adulthood. He recommended that he continue to attend without undue financial burden. (Par. Ex. A). In a letter dated March 6, 2014, grandmother described how the has enhanced him. (Par. Ex. D). The parent also submitted progress reports from Andrew’s summer providers describing his progress in the program. (Par. Ex. F, 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].
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 IDEA’s preference is for disabled to be educated in the least restrictive environment capable of meeting their needs, and a residential placement is, by its nature, considerably more restrictive than a day program Walczak v. Fla Union Free School District, 142F.3d 119 (2d Cir. 1998).
1 Andrew’s IEP goals were not challenged in the due process complaint. (DOE Ex. 1). Andrew’s mother testified that she submits Mr .Dubin’s progress reports every year at the IEP meetings.
Students must be considered for twelve month programming in accordance with their need to prevent substantial regression. 8 NYCRR 200.6 (k)(1); M.W. v. New York City Department of Education, 869 F. Supp. 2d 320 (E.D.N.Y. 2012). As a student in a 6:1:1 class, Andrew is eligible for twelve month programming. 8 NYCRR 200.6(k)(1)(i).
The DOE satisfied its burden of proving that the recommended summer program, which continues the full range of services provided during the regular school year, (and which the parent agrees is appropriate) is reasonably calculated to enable Andrew to receive educational benefits and to prevent substantial regression during the summer months.
Ms. the principal of testified that ten month program, which is geared toward functional life activities, will continue through the Summer of 2014 (from July 3 to August 13). The school will be able to implement all , on site, at the school, during the summer months.
The parent maintains that the residential setting provides greater opportunities for o progress in his therapies, and to practice skills. While the residential setting may indeed additional opportunities to practice his skills, this does not constitute a basis for me to hold that the residential summer program is a necessary component educational program. While the parents desire to maximize Andrew’s potential is understandable, the IDEA guarantees only an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).
In addition, a residential summer program is not the least restrictive environment for Andrew, who is satisfactorily educated throughout the school year in a day program. Walczak v. Florida Union Free School District, supra,
Although Mr. s testimony raises significant concerns about the adequacy of ’s IEP goals for OT, I am precluded from addressing this issue, as it was not raised in the due process complaint. 20 U.S.C.§ 1415[f][3][B]; 8 NYCRR 200.5[j][l][ii]; Application of a Student with a Disability, Appeal No. 12-078; Application of the New York City Department of Education, Appeal No. 07-059. The parent, however, has the right to request that the CSE consider revising ’s IEP goals, and to invite Mr. or any other individual with knowledge or special expertise about the student, to participate in a subsequent CSE review. Education Law 4402(b)(1)(a)(ix); 8 NYCRR 200.5 (b)(2)(iii).
For all of the foregoing reasons, it is hereby ordered that the parent’s request for funding for the education and related services component of a residential program for the summer of 2014 ( ) is denied. Dated: April 21, 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 Letter from Dr. 3/11/14, 1 page B Letter from 3/5/14,[1] page D Letter from , 3/6/14,[2] pages E Photographs, undated, 4 pages F Progress reports, Summer 2013, 5 pages G Progress reports, 2012, 5 pages H IEP and consent, 2013, 4 pages I Camp description, undated, 8 pages J Tuition agreement, 11/27/13, 3 pages K Camp photos, undated, 4 pages
DEPARTMENT OF EDUCATION
Footnotes
[1] Impartial hearing request, 2/25/14, 2 pages
[2] IEP, 1/6/14, 20 pages