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: August 19, 2014
September 5, 2014
Actual Record Closed Date: September 19, 2014
Hearing Officer: . Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2014
Advocate — Student
Parents
DOE Representative — DOE
Teacher Assigned, Committee on Special — DOE
Education, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 5, 2014
Advocate — Student
Parents
Principal (Via Telephone) — Student
DOE Representative — DOE
Ms.., the mother of, requested an impartial hearing on May 15, 2014, seeking funding for her unilateral placement of at the at (hereinafter “ ”), for the 2013/2014 school year.[1] I was designated to hear this matter on June 11, 2014, after the prior hearing officer recused. An impartial hearing was held on August 19, 2014 and September 5, 2014. The compliance date was extended on three occasions, due to the unavailability of witnesses, and extensive testimony, with a final compliance date of October 26, 2014. (IHO Ex. II, III, IV).
is a old boy with a classification of.
(DOE. Ex. 1). His classification is not in dispute. (Par. Ex. A).
On March 8, 2010, when was years old, a evaluation was performed by the It was reported that was attending at the, and was having difficulty
(DOE Ex. 4).
earned a, in the range. His
was in the range. There was a significant different between his and abilities, with demonstrating skills on based tasks than on based tasks. It was recommended that receive a and (“ ”) evaluation, an (“ ”) evaluation, and a (“ ”) evaluation. (DOE Ex. 4). Ms.
’s teacher, reported that he was on a
level for and, and at a level for. It was
reported that he could but that and he had not mastered his. It was reported that is that he needs instruction at times, for and; and that he is learning according to his needs in the provided. (DOE Ex. 3).
On May 24, 2013, the Committee on Special Education (“CSE”) met to review ’s program., a certified who also testified at the hearing, served as the District Representative and teacher. (Tr. p. 11;
DOE Ex. 1, p. 11). ’s mother and her advocate participated in the meeting by telephone. (Tr. pp. 18-19). The team also included , the director of the Academy, and , a there. (Tr. pp. 13-14). At the time of the review, was in his grade year; and the IEP was prepared for his grade year. (Tr. p. 29). He was years old at the time of the review. (Tr. p. 79).
Mr. testified that Ms. provided information regarding the student’s strengths and weaknesses, . The CSE also relied on the school progress report, in reporting the student’s academic levels. (Tr. pp. 16-17).
The IEP reported that ’s was on the level and that he needs a lot of . It was reported that his skills are intact; but that he needs a lot of and . It was reported that he is a and . , it was reported that he is . His needs were described as and ;
; use of materials and
. (DOE Ex. 1 pp. 1-2).
A new evaluation was not performed because, at the time the appointment letter went out, three years had not passed since the prior evaluation. (Tr. p. 17).
’s IEP includes academic goals for increasing skills, by year, to the level; improving his ability to grade found in the grade core curriculum; improving his skills by the core curriculum; and improving his skills, by from the grade core curriculum. The IEP includes goals of and skills; goals of developing and . There are no goals. (Id. at 3-4).
The CSE recommended placement in a Class with a staffing ratio of ; with related services of / (“ ”) , times per week in ; (“ ”) , times per week , and per week and per week in ) . All sessions were minutes in duration. (DOE Ex. 1, at 4-5).
Mr. testified that the team felt that needed to be challenged, in light of his ; and therefore set academic goals at the level . (Tr. p. 22). He testified that the CSE review team felt that given ’s strengths, it was very feasible that he could master these goals by the end of his year. (Tr. pp. 30-31).
Mrs. ., ’s mother, testified that both she and ’s teacher objected to the recommended staffing ratio; and requested instead that it be so that he would . (Tr. pp. 80-81).
On August 12, 2013, the parent sent notice to the CSE that she would seek funding for her unilateral placement of at the Academy, specifically citing the inadequacy of the IEP goals. (Par. Ex. D).
In a Final Notice of Recommendation dated August 13, 2013, the DOE offered a placement in a Class with related services of , , and at (DOE. Ex. 2).[2] Mrs. . testified that she received it on or about August 26, 2013. (Tr. p. 96)
Mrs. testified that she went to see the school on the first or second day of school. She observed the recommended class, and testified that the students she observed were all at different levels of . She was told that the oldest student was years old; and that the class ranged from a to a level. The students were and . She testified that was not at the time; and she felt the age range was not appropriate. (Tr. pp. 84, 88, 100).
She testified that the teacher was the only adult in the class; and that the teacher informed her there would be no additional adult in the room. (Tr. pp. 89-90).
The parent signed an undated enrollment contract enrolling at the Academy for the 2013-2014 school year, at a cost of , and paid the tuition in two installments; one payment of on March 6, 2013; and the balance of on August 27, 2013. (Par. Ex. K, L, M).
On October 2, 2013, Ms. . rejected the proposed class as being in appropriate for . (Par. Ex. C).
Mrs. . testified that during the 2013-2014 school year, progressed in and ; and that he was able to with two teachers in the class. (Tr.
pp. 85-86).
, the principal of the Academy, testified that she is licensed in , and . The Academy provides classes with an average of students (with one teacher and an associate teacher) and related services, of , and , with licensed providers. (Tr. pp. 44-46).
The school staff includes a and a teacher. (Tr. p. 47).
At the start of the school year, was below level; but progressed by the end of the year to a level. He was also at least a year behind in his skills; but progressed to a level by the end of his grade year. (Tr. pp. 49, 57, 59-60, 62).[3] She disagreed with the IEP goals which were set at a t level; as ’s skills were barely at a level at the time of the challenged CSE review. (Tr. pp. 57-58).
For the 2013-2014 school year, was a student placed in a class with students, a certified teacher, who is trained in the method, and an assistant teacher, who is working on a Master’s Degree in . He received the related services recommended in his IEP as well as sessions per week.
(Tr. pp. 48-49, 69). Ms. testified that his was weak, and he needed a lot of , , and (Tr. p. 51). She testified that within his class, he is placed in smaller groups. (Tr. pp. 53-54).
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 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).
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).
Evaluation
A CSE must conduct a multidisciplinary evaluation at least once every three years. 8 NYCRR 200.4(b)(4). The record indicates that the most recent testing available to the CSE was a evaluation performed more than three years prior to the challenged review. The CSE relied upon informal teacher reports for determining the student’s academic levels. I credit Ms. that the grade levels reported by ’s teacher were not consistent with his actual skills.
Goals
An IEP must report the student’s present levels of academic achievement and functional performance, and include appropriate annual goals, consistent with the student’s needs and abilities, with the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. 8 NYCRR 200.4[d][2][i]; 8 NYCRR 200.4[d][2] [iii].
I find that it was inappropriate for the CSE to set ’s , , and goals at a level; given the fact that he was at or below a level at the time of the review. In addition, the IEP is deficient to the extent it does not include any goals.
I find that the foregoing procedural inadequacies rose to the level of a denial of FAPE. See M.H. v. New York City Department of Education, 685 F. 3d. 217, 249 (2d Cir. 2012). The lack of adequate evaluations prevents me from determining the substantive adequacy of the IEP.
Recommended Site
The DOE failed to present any evidence about its ability to implement ’s IEP at the recommended site. The parent presented evidence that the staffing ratio set forth in ’s IEP would not be implemented in the proposed class which had only teacher, and no other adult in the room; and that there was a wide disparity in the academic levels of the students, from a to a level, rendering the recommended site inappropriate.
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).
As described by Ms. , ’s program consisted of placement in small, class of students, with all of the related services recommended in the disputed IEP. was instructed by a certified teacher, who was assisted by a second teacher who was working towards a master’s degree. instruction was provided, and received additional instruction times each week.
I credit Ms. that made progress in and . I credit Mrs.
. that he was able to with the support provided.
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, visiting the proposed site, and providing 10 day notice of her intent to place privately and seek funding.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall reimburse the parent for ’s tuition expenses at the Academy for the 2013-2014 school year, upon presentation of proof of payment thereof.
Dated: September 24, 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, 5/15/14, 4 pages
B Program Description, undated, 2 pages
C Final Notice, 8/13/13, 2 pages
D Ten Day Notice, 8/12/13, 2 pages
E Class Schedule, 2013-2014, 1 page
F Class Profile, 2013-2014, 1 page
G Progress Report, 2013-2014, 1 page
H Assessment, 3/5/14, 1 page
I Progress Report, 3/10/14, 2 pages
J and Report, 3/14, 3 pages
K Affidavit of Payments, 6/17/14, 1 page
L Enrollment Contract, 2013-2014, 1 page
M Parent's Proof of Payments, 2013-2014, 1 page
DEPARTMENT OF EDUCATION
1 IEP, 5/24/13, 11 pages
2 Final notice, 8/13/13, 1 page
3 Progress Report, undated, 1 page
4 Evaluation, 3/8/10, 5 pages
IMPARTIAL HEARING OFFICER
I Pre-hearing Conference Summary6/12/14, 1 page
II Case follow up sheet, 6/26/14, 1 page
III Case Follow Up Sheet, dated August 19, 2014, one page
IV Case Follow Up Sheet, dated September 5th, 2014, one page
Footnotes
[1] In her due process request, the parent alleged, among other things that that the evaluation was insufficient; that the goals are not individually tailored to meet the student’s needs; that the related services mandates are not appropriate; that the recommended staffing ratio was insufficient; that the related services mandates are inadequate; that the parent did not meaningfully participate in the development of the IEP, and that the recommended site could not provide an appropriate functional group or implement the student’s IEP. (Par. Ex. A).
[2] The Department of Education (“DOE”) did not present any other evidence regarding the proposed site, arguing that as the parent did not accept the placement, any information that could be obtained from the school would have been speculative. (Tr. p. 37).
[3] To the extent that ’s teacher reported higher grade levels, Ms. testified that they were inaccurate, in relationship to skills at the time. (Tr. p. 74).