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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 25, 2014
May 16, 2014
June 2, 2014
June 26, 2014
July 10, 2014
July 29, 2014
September 11, 2014
September 30, 2014
October 8, 2014
Actual Record Closed Date: November 10, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2014
Attorney — Student
Parents
Translator — Student
DOE Attorney — DOE
Special Education Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2014
Attorney — Student
Mother — Student
Director — Student
Interpreter — Student
DOE Attorney — DOE
Unit Coordinator — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 2, 2014
Attorney (Via Telephone) — Student
DID NOT APPEAR
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 26, 2014
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2014
ESQ., Attorney — Student
Parent/Mother — Student
Spanish Interpreter — Student
Legal Intern, — Student
Special Education Teacher, (Via Telephone) — Student
ESQ., Attorney, — DOE
Principal,, Brooklyn (Via Telephone — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 29, 2014
Parents' Counsel — Student
Parents
Spanish Interpreter — Student
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11, 2014
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 30, 2014
Attorney for Parent — Student
NO APPEARANCE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2014
Attorney — Student
Representative — DOE
INTRODUCTION
The parents payment by the school district for the at the ) for the 2012-2013 school year. (Exh. A)
APPLICABLE STANDARDS
As was recently reiterated in Appeal No. 14-135, Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (IEP) developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 20607; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; ., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed. App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). 8
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
IEP
The parents contend that the student’s IEP for the 2012-13 school year was deficient. I agree.
The parents correctly assert that for students who receive alternate assessments, such as the student in this case, the IEP must include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal. 8 NYCRR Sec. 200.4, 20 USC Sec. 1414 (d). A review of the IEP reveals that many of the annual goals and short-term objectives in the IEP were flawed and would not have provided for an accurate measurement of the student’s performance and progress. For example, several goals were overly broad and vague. Specifically, one of the goals in the area of speech stated simply that within one year the student will increase receptive language skills. Although this goal included several short-term instructional objectives, they failed to state any short-term deadlines or time frames to adequately measure the student’s progress towards meeting the short-term objectives and the annual goal. (Exh. 1 at 3)
Another example of an overly broad and vague annual goal was also in the area of This goal stated that within one year the student will . Although this goal contains three short-term objectives, they also lacked adequate time frames to provide sufficient guidance as to whether the student was making steady and sufficient progress toward meeting both the short-term objectives and the annual goal. (Exh. 1 at 4)
An IEP must include annual goals that are designed to meet the student's specific, individual needs resulting from the student's disability and to enable her to make progress. I find that too many of the annual goals and short-term objectives in this IEP, some of which are described above, were not sufficient.
Moreover, at the hearing the classroom teacher reviewed the 2012-13 IEP prepared by the school district and testified credibly that by July 2012 the student has already achieved some of the goals and others were “too low” for her. (Tr. At 320-361)
For all of the above reasons, the IEP was not reasonably calculated to provide some meaningful benefit in the least restrictive environment as is required by law. This resulted in a fatally flawed IEP that deprived the student of a FAPE. (Exh. 1) The Recommended School District Placement
Although I have determined that the IEP was not sufficient and deprived the student of a FAPE, which concludes the necessary inquiry as to prong 1, I will nonetheless address the appropriateness of the recommended school district placement. The school district contends that the proposed placement provided a FAPE. However, I find that it did not for several reasons. A Final Notice of Recommendation (FNR) dated June 12, 2012 recommended placement at . (Exh. 9). The parent testified credibly regarding the appropriateness of the recommended placement. (Tr. At 380-472) She testified that she visited the school two days after receiving the FNR. She observed that the school building was “big” and contained three different schools. She opined that the size of the building rendered it inappropriate because it inhibited the student’s confidence and independence. The parent’s testimony is supported by the record, including the testimony of the student’s classroom who testified in detail about the student’s . (Tr. At 320-361)
The parent also testified that the recommended . She opined that this was not appropriate for the student because she needed the reinforcement at home to learn. The parent’s testimony is supported by the testimony of the classroom who testified about the student’s need for homework to reinforce at home . (Tr. At 320-361) Although a school district witness from the recommended school testified generally that homework at the recommended placement is a requirement per school policy (Tr. At 108) I find the parent’s testimony credible as to what she learned during her visit and in conversation with another parent whose child attended a class at that school. (Tr. At 406-409) The parent also testified that she was disappointed to class of a teaching assistant, which she believed is what the student required. (404-466)
The school district bears the burden of demonstrating that the recommended placement is reasonably calculated to meet the student’s needs. I find that they have not met this burden. The Unit Coordinator and the Principal of the recommended school testified generally about the program but their testimony was insufficient to establish the appropriateness of the placement for this student in particular. For example, there was insufficient testimony as to how the program would have provided for the specific needs of the student, who , when taught in a classroom with classmates who have different disabilities and different academic and management needs. There was inadequate testimony as to how the programs would be individualized. There was also no testimony regarding the training, credentials and responsibilities of the paraprofessional in the recommended class.
The parent rejected the offer and did not receive another placement offer from the school district. I find that in light of the student’s mobility and academic needs, the concerns raised by the parent were legitimate and the record does not demonstrate that the recommended placement provided a FAPE in the least restrictive environment for this student. Related Services
Another issue raised by the parents that I will address is whether the failure to provide related services during the 2012-13 school year deprived the student of a FAPE. I find that it did.
The record establishes that the March 13, 2012 IEP mandated the related services of speech and language therapy, occupational therapy and physical therapy for the 201213 school year. However, the school district refused to provide these services, a clear denial of a FAPE. The fact that during this school year did not relieve the school district of their obligation to provide these services. In fact, the parent and the student’s classroom teacher inhibited the student’s progress. (Tr. At 345, 401-402, 440) Thus, the student was denied a FAPE for the 2012-13 school year.
The record also establishes did not provide related services to the student during the 2012-13 school year because these services are usually paid for by the school district. If the school district had agreed to pay for the services, as I believe they were required to do, the student would have received them. Appropriateness
I find was an appropriate placement. The director of the elementary school program and the student’s classroom teacher from 2012-2014 testified on behalf of the parents. The school uses is located on students. The an suite
During the 2012-13 school year the student attended a 12:1:1 class. The class had nine students, a classroom teacher and an assistant teacher. Academic subjects were individualized to meet the needs of each student. Students were also taught small groups. Homework was assigned and differentiated based on the needs of each student.
The classroom teacher testified that during the 2012-13 school student progressed in many areas, . She had However, because of the small which included wide hallways, the student was able to ambulate independently with limited assistance. (Tr. At 320-361)
The student did not receive related services during the 2012-13 school year. However, I find that this did not render the placement inappropriate, especially in light of the fact that Seton would have provided the services if they had been approved for payment by the school district.
The record also establishes that the for the 2012-13 but could not afford to pay the entire amount. Equitable Considerations
I find that the equities favor the parents. The record establishes that the parents cooperated fully with the school district’s efforts to place the student in an appropriate public school setting. Other Issues
I have considered the parties’ remaining contentions and did not reach them or found them to be without merit. Having reviewed the entire record (Tr. At 1-557), including the hearing transcript and all of the Exhibits (1-16 and A-T), I find that the parents are entitled to the relief they seek.
ORDER
The school district is to pay for the 2012-13 school year either (a) directly to , with the understanding reimburse the parents for all amounts they paid toward the , or (b) by reimbursing the parents for all amounts and paying the balance of the Dated: November 20, 2014
, ESQ.
Impartial Hearing Officer
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, March 11, 2014, 5 pages B Letter dated June 18, 2012 , 1 page C Pages 10 and 11 of the S D “General Directions to Use the State’s Model IEP
Form,”, 1 page D Annual Facilities Survey, , 2012-2013, 6 pages E Annual Facilities Survey, , 200-2010, 3 pages F Special Ed Service Delivery Reports, 3 pages G Special Ed Service Delivery Reports, 4 pages H Special Ed Service Delivery Reports, Brooklyn School of
Inquiry, 2012-2014, 4 pages I “A Parent’s Guide to Special Education Services for School-Age
Children”, 6 pages J Description, 3 pages K Daily Class Schedule for Summer 2012 and for 2012-2013, 2 pages L Primary 2 Class Profile for 2012-2013, 3 pages M Attendance Card of 2012 and 2012-2013, 1 page N Tuition Agreement, 6/10/12, 1 page O Affidavt dated 2/27/14, 1 page P 2012 US Income Tax Return, 2/17/13,[2] pages Q Letter dated 12/6/12 from Diane Taratio to Mr. & Mrs. Contreras,[1] page R IEP, dated May 16, 2013, 16 pages S Subpoena to , dated May 23, 2014, two pages T Response to Subpoena, , email dated 06/12/14,
IEP dated 03/13/12
DEPARTMENT OF EDUCATION
3 Teacher Evaluation dated February 15,
2012, 1 page 4 Therapy Progress Report dated
February 8, 2012, 6 pages 5 Therapy Progress Report – Provider
, 2/12/12, 2 pages 6 Progress Report, 2/10/12, 3 pages 7 Progress Report, 2/10/12, 1 page 8 Student Evaluation, 2/15/12, 5 pages 9 Final Notice Recommendation, 6/12/12, 1 page 10 12 Month School Year Consent Form, 3/20/12, 1 page 11 Notice of IEP Meeting, 2/16/12, 4 pages 12 Due Process Response, 3/11/14, 3 pages 13 Subpoena to , dated April 11, 2014, two pages 14 in response to the subpoena which is Exhibit 13,
undated, one page 15 Subpoena to , dated June 26, 2014, one page 16 in response to the June 26th, 2014 subpoena, undated, one page
Footnotes
[1] IEP for 2012-2013 school year dated March 13, 2012, 13 pages
[2] IEP Meeting Minutes dated May 13, 2012, 1 page