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: September 13, 2013
October 23, 2013
November 25, 2013
April 1, 2014
April 28, 2014
Actual Record Closed Date: July 7, 2014
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13,
2013
ESQ., Attorney for Parent — Student
Parents
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2013
Attorney — Student
Parents
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 25,
2013
Attorney — Student
Parents
CSE 7 Chairperson's Designee — DOE
Assistant Principal, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2014
Attorney — Student
Parents
(Via Telephone) — Student
CSE Chairperson Designee — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2014
Attorney — Student
DID NOT APPEAR
By Complaint received on July 22, 2013, this matter came before me as IHO pursuant to the pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The Complaint alleges that the March 28, 2012 Individualized Education Program (IEP) denied the Student a Free and Appropriate Public Education (FAPE) because it was not created by an appropriate team and did not recommend a small class setting. classroom. (Exh. A) The parent accordingly asks for tuition reimbursement for the 20122013 school year.
The matter did not resolve during the resolution period. A prehearing conference was held in this matter on September 4, 2013. Hearing dates were then scheduled, but there were multiple adjournment requests in this case. Adjournment requests were made by both sides.
Upon the application of the parent, District, or jointly, the parties moved multiple times to extend the timelines in this case. The reasons were witness availability, parent availability, and to allow the IHO to write a decision in this matter. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that these were an appropriate matters for extension. Especially given that this case involves an earlier school year, there was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 1)
FINDINGS OF FACT
The Student is a boy who is eligible for services as a student with an impairment. (Exh. 1)
The Student has engaged in “extreme” behavior. (Exh. 6) Even in a small classroom, he will , call out frequently, fail to follow rules. (Exh. 6) He will the classroom. (Exh. 6) BASC-2 and TAT testing confirms that the Student himself from intense situations, causing him to . (Exh. 6)
The Student has been recommended to receive meetings with the paraprofessional out of the classroom, a self-monitoring checklist, a a “1, 2, 3" system of reminders, counseling, and strategic pairing with other children. (Exh. 6)
His , but he needs constant reminders about his schedule, rules, and is easily distracted in class. (Exhs. 1, 5, 6) He and needs clear and concise directions, redirection to be back on task, and prompting. (Exh. 1) He has in the classroom and requires a paraprofessional to work with . (Exh. 1, 106-107) He has severe anxiety and depression and trouble with noise and social situations. (100)
He also struggles in writing. (139)
Examples of the Student’s outbursts include punching himself in the face, throwing himself on the floor, running out of on the floor. (101)
He does not do well in large groups. (118) He does not do well with assemblies and trips. (119) He cannot handle the stress of a large class. (136) He has to be “partitioned” at large gatherings. (143)
For the 2011-2012 school year, the Student went School. (103) He was in a small classroom with 15 students and a full-time paraprofessional. (103) He met with a school psychologist five times a week. (103) The school psychologist would also push into the lunch area so she could help him with play. (103)
At the March 28, 2012 Committee on Special Education (CSE) review, appearing , special education teacher; education teacher; the parent; a district representative/school psychologist; a parent member; and a social worker. (Exh. 1) from the , also attended. (60)
The special education teacher at the review, , had not taught special education in recent years and was not going to be the Student’s teacher for the forthcoming year. (73)
The team got information from a and the school. (62) The team did not use the parent’s report although it was available to the team at the time of the review. (75-80)
The school extensively discussed the Student’s the Student’s issues with focus. (64)
The school felt that the Student required a small classroom. (84, 107) It was indicated that a large class size would be very difficult for the Student considering his sensitivity. (107-108) It was also indicated that the Student needs a small school. (108) The parent was concerned that the Student might be placed in a classroom with 30 students. (142) The team did not recommend a small classroom or a small group. (84) There was no consideration of a small placement. (87)
The March 28, 2012 IEP recommends a 1:1 paraprofessional for the Student, with management needs consisting of repetition, review and rephrasing; instruction broken down into discrete units of learning; use of multi-sensory materials; use of graphic organizers; cues and prompting; praise and encouragement. (Exh. 1)
Goals relate to improving frustration tolerance, improving focus, and reducing the tendency to criticize his own behaviors. (Exh. 1)
Counseling is recommended twice a week for thirty minutes. (Exh. 1)
A Functional Behavior Assessment was written for the Student. (Exh. 4) This FBA indicated that the presumed purpose of the Student’s behaviors was to get attention. Antecedents were open-ended activities. The FBA recommends that the teacher should use praise, structured attention, talking through issues, pre-planning the schedule to address these issues. (Exh. 4)
The Student was assigned . (Exh. 2) The parent sought to visit the school in a prior school year and the parent coordinator suggested that the parent keep the Student at . (154) For the 2012-2013 school year, he tried to set up an appointment to visit the school but did not receive a call back after leaving a message. (155) The parent then sent notice of a unilateral placement. (156-157)
The Student for third grade. (112) The school has about 85 children. (124) He was in a class with 16 children and began to meet every morning the school psychologist. (112) There were weekly meetings to discuss the Student’s schedule for the week and for the Student. (112-113) The classroom teacher scheduled morning attend. (114) There was an afternoon meeting so that his paraprofessional to go over the day. (115) There was a second session day to go over strategies on social issues.
(116) School psychology interns were pushing in during lunch to help with play. (117)
He still had “plenty” of outbursts during this year. (121) However, he cared more about the quality of his work. (122)
The Student’s grades were generally 3 (meets expectations) for the year, with 2 and 4 grades mixed in. (Exh. F) Progress was noted in writing, reading, and math. (Exh. F)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies a) impeded the child'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 child, or c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The Second Circuit has underscored the importance of writing detailed IEPs that address all of the Student’s academic and social issues. The court indicated that “parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) cert. denied, 2013 WL 1418840 (U.S. June 10, 2013)
The record indicates that this Student requires a reasonably small class size. The witnesses from the school indicated as much on the record, and indicated this to the CSE during the IEP meeting. The record indicates that the Student would be subject to extreme behaviors in a large classroom setting such as the one proposed by the District. There is nothing in the record from anyone who knows this Student to credibly rebut the assertions of the school staff. The District did assign this Student a paraprofessional, but the record shows that even with a , the Student experienced a fair amount of significant emotional incidents in the small class setting where he was housed in 2011-2012. This small class setting included a great deal of additional support, including daily meetings with a school psychologist. This level of support was not offered in the program offered by the District. I have to agree with the parent that to increase the class size after the Student’s performance in 2011-2012 was not reasonably calculated.
I note that the District did not present any argument to the contrary. In fact, the District failed to appear at the final hearing date to present a closing statement in this case. Afterward, the District did not contact this hearing officer to explain why there was a non-appearance or to ask for permission to either submit a late brief or to set a new date for closing statements. I specifically allowed the District an opportunity to so argue in the hearing. (179)
Under the circumstances, I agree with the parent that the CSE should have provided the Student with a small class size to address his emotional and behavioral needs. See Sudbury v. Mass. Dep’t of Elementary and Secondary Educ., 762 F. Supp.2d 254 (D. Mass 2010); Gellert v. District of Columbia, 435 F. Supp.2d 18 (D.D.C. 2006).
As a result of the foregoing, I agree with the parent that the District denied the Student a FAPE through its March 28, 2012 IEP.[1]
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The Student functions mostly at grade level, though there are some deficits in writing. However, the record shows that the Student engages in outbursts during class. The Student clearly should be in a general education classroom because can handle the curriculum, but needs a significant amount of interventions to keep him as controlled as possible. has put in place quite a few special education interventions to deal with these outbursts. He was assigned to a small class, in a small school, with a 1-1 paraprofessional. He met twice a day , the school psychologist. There was a meeting with his paraprofessional every day. There were weekly meetings to discuss the Student’s schedule for the week and sensitive issues for the Student. School psychology interns were pushing in during lunch to help with play. While, even with all these interventions, the Student had issues in the classroom, the District did not suggest any additional interventions that might have been necessary. Again, the District did not present a closing statement to point out deficiencies in program. Finally, the record shows that the Student made progress in this program. The parent prevails on the second criterion.
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(I), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The record shows that the parent provided the District with access to the student and generally cooperated with the IEP team. The District offers no argument on equities. The parent prevails on the third criterion and is awarded tuition reimbursement for 2012-2013 .
ORDER
As a result of the foregoing, it is hereby ordered that the New York City Department of Education shall reimburse the parents for the sum of $39,700 in tuition paid to for the 2012-2013 school year upon presentation of proof of payment to the school. Dated: July 21, 2014
Michael Lazan mv
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML;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 Complaint, 7/15/13 4 pages B Notice of Unilateral Placement,8/22/12, 3 pages C Enrollment Contract,9/10/12, 1 page D Description, 1 page E Schedule, 1 page
DEPARTMENT OF EDUCATION
1 IEP, 03/28/12, nine pages 2 FNR, 06/11/12, one page 3 Observation, 11/04/11, one page 4 FBA BIP, 0/28/12, three pages 5 Evaluation, 10/07/11, four pages 6 Private Report, 07/16/11, 12 pages
IHO
I Timelines Notices, 10 pp.
Footnotes
[1] I do not agree with the parent’s assertions that the constitution of the CSE team had a material impact on the Student or parent here. The record indicates that the CSE team included a member of the school and included a vigorous discussion of the Student’s needs.