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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: September 4, 2013
December 9, 2013
January 31, 2014
February 7, 2014
Actual Record Closed Date: March 10, 2014
Hearing Officer: Diane Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 4,
2013
Attorney for Parents
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2013
Attorney for Parents
District Representative
Mother
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2014
Attorney for Parents
Mother
District Representative
(T) Teacher Assigned — DOE
(T) Principal — DOE
Dr. (T) Director Elementary School Services at — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2014
Attorney for Parents
Mother District Representative — Parents
On August 29, 2013, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. We convened for a hearing on September 4, 2013, during the resolution period, to address pendency. I continued to have questions after the pendency hearing, and a lengthy email exchange ensued. I include that exchange as Exhibits III and IV.
PENDENCY
With respect to pendency, I note that the Committee on Special Education (the “CSE”) convened on January 9, 2013, during the 2012-2013 school year and recommended a 12:1+1 class with a variety of related services, included Hearing Education Services (“HES”) one time per week for 30 minutes (See Exh. B, p. 9). The CSE also recommended an FM Unit, an alternative augmentative communication device and air conditioned transportation (See Exh. B, pp. 9 and 12).
The Parents placed the Student at the ”) for the 2012-2013 school year, and received related services and transportation from the New York City Department of Education (the “DOE”). The Parents did not seek tuition reimbursement for that year (See Exh. V).
The CSE did not reconvene to draft an individualized education service plan (an “IESP”; See Exh. III, p. 22), but continued to provide nearly all the services on the individualized education program (the “IEP”). The parties agree that the following services were provided by the DOE:
(1) therapy, one time per week for thirty minutes, in a group of three;
(2) therapy, individually, three times per week for thirty minutes each session;
(3) , individually, two times per week for thirty minutes each session;
(4) , two times per week for thirty minutes each session, in a group of two;
(5) individually, one time per week for thirty minutes;
(6) Special education transportation;
(7) Assistive technology (FM Unit and alternative augmentative communication device) (See Exh. II, pp. 1-2).
The DOE argued that the Student was not entitled to as part of his pendency services because the IEP, dated May 29, 2013, was rejected by the Parents when they unilaterally placed the the 2013-2014 school year (See Exh. II, pp. 2-3). However, it was not the Parents’ argument that they had pendency on the basis on the May 29, 2013 IEP. They asserted that they had pendency based on the prior IEP, dated January 9, 2013. For that year – the 2012-2013 school year -- they had parentally placed the Student at and had received services from the DOE. They did not seek tuition reimbursement for that year.
Thus, while they had rejected the public school setting and had parentally placed the Student in a private school, they were still entitled last year to services from the DOE in the private school Typically, an IESP would be developed, but in this case, the DOE provided services without drafting an IESP (see Exh. III, p. 22). The Parents argued that the services set forth on the IEP, dated January 9, 2013, constituted the pendency placement. The DOE disagreed and asserted that if the Student had had an IESP, that would have served as the pendency placement (see Exh. II. P. 22), but since he did not have an IESP, he is only entitled to the services the DOE actually provided.
The issue was thus whether the last agreed upon placement is the set of services which were actually provided by the DOE during the 2012-2013 school year, or the set of services which should have been provided by the DOE during the 2013-2013 school year.
The DOE developed an IEP in January 2013. When the Parents elected to place the Student at Seton for that year, the CSE did not develop an IESP, but provided nearly all the services set forth on the IEP. Moreover, had they developed an IESP, they would have been required to have included the same services on the IESP which were included in the IEP. New York State Education Law, Section 3602-c, provides:
“b.(1) For the purpose of obtaining education for students with disabilities, as defined in paragraph d of subdivision one of this section, such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program.” NY Educ. L. §3602-c (2)(b)(1)
Since the DOE was required to have drafted an IESP and since the IESP was required to have provided the same services as the IEP, I see no basis for concluding that the services actually provided constituted the pendency services, rather than the services which were required to have been provided. Having failed to develop an IESP as required, I deemed that the services set forth on the IEP, dated January 9, 2013 (Exh. B)
constituted the last agreed-upon placement.
On October 1, 2013, I ordered that the following would be the Student’s placement during the pendency of these proceedings (See IHO Exh. VI):
(1) , one time per week for thirty minutes, in a group of three;
(2) therapy, individually, three times per week for thirty minutes each session;
(3) Physical therapy, individually, two times per week for thirty minutes each session;
(4) , two times per week for thirty minutes each session, in a group of two;
(5) , individually, one time per week for thirty minutes;
(6) HES, one time per week for 30 minutes;
(7) Special education air conditioned transportation;
(8) Assistive technology (FM Unit and alternative augmentative communication device).
HISTORY OF THE CASE
On September 13, 2013, the parties waived the remainder of the resolution period. I immediately contacted the parties and attempted to schedule a hearing on the merits. I did not receive dates from the parties within a reasonable time frame and I scheduled the hearing for October 11, 2013. The Parents indicated that their witnesses were not available on that date and requested dates in November. After a lengthy exchange of emails, I agreed to adjourn the October 11, 2013 hearing date and to reschedule the hearing for October 18, 2013 and November 6, 2013. The district representative was copied on every email but did not respond.
The Parents requested that I sign a subpoena to produced various documents. There was no objection by the DOE and I signed and faxed the subpoena to the case manager on September 28, 2013 (See IHO Exh. VIII).
On October 11, 2013, the Parents submitted an amended hearing request. The DOE accepted the amended request and the resolution period began anew. On October 14, 2013, the Parents submitted subpoenas for my signature. The DOE objected to the subpoenas and requested a subpoena hearing. I indicated that I would address any issues after the end of the resolution period.
On October 30, 2013, I was notified that the resolution was unsuccessful and that the case should proceed to a hearing. I contacted the parties on October 31, 2013, to schedule hearing dates to address the subpoena issue as well as the merits of the case. A hearing was scheduled for December 9, 2013. We were able to resolve the subpoena issues by email and I signed the revised subpoenas on November 8, 2013 (See IHO Exh. X).
On December 5, 2013, the DOE requested an adjournment of the hearing date due to lack of witness availability and litigator availability. I took notice of the fact that this particular district was overloaded with cases and it was their practice to make such requests of adjournment regularly. I took the fact of the severe overload of cases in that district into consideration in responding to such requests. In this case, however, I felt that the matter needed to move forward without further delay and that the district would have to reapportion its litigators and witnesses to be able to appear at the hearing. I denied the request and we convened for the hearing on December 9, 2013.
At the hearing on December 9, 2013, the DOE indicated that they had become aware of some additional information from the Parents and the attorney for the Parents and were seeking an adjournment to review that information and consider their options including the possibility of a new IEP meeting. They requested an adjournment and an extension of the timelines. The Parents did not object and joined in the request for an extension of the timelines (See T. 27-28) Based upon the information set forth above, I determined that an adjournment was appropriate. I considered the fact that the DOE had requested the adjournment and the extension of the timelines and that the Student was receiving pendency services. Any financial harm was therefore borne by the DOE. The Student’s program would not be affected. After weighing all factors, I therefore granted the adjournment request and the extension of the decision date and extended the decision date for 30 days to January 15, 2014. Hearing dates were scheduled for January 15, 2014, January 31, 2014 and February 26, 2014. It was difficult to find hearing dates. My hope was that we would complete the haring in January and use the February date as a back-up.
On December 19, 2013, the Parents’ attorney requested an adjournment of the January 15, 2014 hearing date due to an important medical appointment which could not be changed and which would prevent her attendance on the half day we had reserved. I was compelled to grant that request , after considering the appropriate factors, due to the circumstances, but was concerned that this would delay the hearing into February when we might otherwise have completed the hearing in January. The Parents requested an extension of the decision date due to this additional delay. I added an additional hearing date of February 7, 2014 to avoid the longer delay to February 26, 2014.
On January 6, 2014, I granted the Parents’ request (made on December 19 and renewed on December 30) and extended the decision date for thirty days to February 14, 2014. After a series emails, I enlisted the agreement of the parties to reserve the full day on January 31, 2014, rather than the half day that had previously been agreed to, so that we could complete the hearing without further delay. The parties agreed to this on January 15, 2014.
We convened on January 31, 2014 for the hearing. Although the parties had agreed to reserve the full day, the district representative who was assigned was unable to stay beyond 1:30 due to child care issues. I will note that this particular district has a changing cast of district representatives and often the district representative is different on different hearing dates for the same case, or is not assigned until the last minute. In this particular case, the district representative who was assigned was unaware of the discussions that we had had regarding reserving the full day for January 31.
I agreed to end the hearing at 1:30 due to the exigencies of the situation, again noting that the Student was on pendency and that the only harm of the delay would be the financial one for the DOE – which was the party causing the delay. On January 31, 2014, the Parents requested an extension of the decision date so that we could complete the hearing. I granted that request and extended the decision date for thirty days to March 16, 2014.
Ultimately, we were able to complete the hearing on February 7, 2014, without additional delay. The Parents requested an extension of the decision date to allow time to submit a closing memorandum. We agreed that parties would have until March 7, 2014 to submit closing memoranda.
On February 21, 2014, I granted the Parents’ request and extended the decision date to March 22, 2014 (See IHO Exh. VII).
ISSUES
The Parents’ hearing request, dated August 29, 2013, asserts that the DOE failed to provide a free appropriate public education (a “FAPE”) for the 2013-2014 school year. The hearing request asserts that the placement site offered was closed for the summer and that her calls were directed . The Mother asserted that she had previously toured the site, that there had been thirteen children in the class in February, and that the children had behavior issues which was a big concern because the Student is credulous and can be easily influenced. She asserted that no one called her back from the school. She asserted that she sent a letter to the DOE on August 13, 2013, advising them of her concerned regarding an appropriate school and her intention of enrolling the Student at and her intention to seek public funding.
The hearing request also asserts that the IEP did not provide adequate detail to guide the development of an academic program and asserts that it can not be implemented in the recommended site due to the behaviors of the other students and their functional levels.
The Parents’ closing memorandum argues that the triennial was inadequate. (See IHO Exh. IX, pp. 6-7). However this was not raised in the hearing request and will not be considered. To do so, would be unfair to the DOE which had no notice of that argument. The hearing request does not assert that the triennial evaluation was inadequate. It asserts that the IEP team met on May 29, 2013 to develop a program while the Assistive Technology Evaluation was still pending. It also asserts that the IEP contains related service goals taken from the recommendations of the related service providers. It also asserts that the “scant” academic goals were not directed to advance the Student’s levels to a first grade level. The Parents’ closing memorandum also argues that the class in a community school for a ten month school year was inappropriate (See Exh. IX, pp. 9-10). However, again, this issue was not raised in the hearing request and will not be considered.
The Parents request tuition reimbursement and direct payment to the school of the tuition in the amount of $25,000. They also request the provision of all the Student’s related services as they are reflected on his IEPs (See Exh. A)
The amended hearing request, dated October 10, 2013, repeats the claims in the original request but adds two addition claims relating to transportation and assistive technology. These issues have been resolved (See T. 42-43). I will therefore not address them.
APPLICABLE STANDARDS
Two purposes of the 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 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 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 206-07; 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)).
The IDEA directs that, in general, a hearing officer’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 Tucker v. Bay Shore Union Free Sch. Dist., 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 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, 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student with a disability 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)).
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 M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACT
The CSE convened for an IEP meeting on May 29, 2013 when the Student was eight years and eleven months old. The Student has Down Syndrome.
A Evaluation was performed on May 6, 2013. The Stanford-Binet Intelligence Scale: Fifth Edition was administered. The Student earned a Standard Score of , in the (Exh. 3, p. 7).
The Woodcock-Johnson Third Edition was administered. He achieved scores in the Very Low categories in all domains. He was level in Passage Comprehension, Applied Problems and Spelling (Exh. 3, pp. 7-8)
The Evaluation sets forth that the classroom teacher indicated that the Student was performing on the kindergarten level in decoding, vocabulary, applied problems, spelling, grammar and handwriting. He was performing on the kindergarten to first grade level in comprehension and calculation (Exh. 3, p. 1). He was identifying sight words; was attempting short unfamiliar words, was beginning and ending sounds, and was identifying numbers 1-20 with accuracy. He required and , but otherwise cared for his basic needs independently. His impeded his ability to communicate effectively, He was becoming more aware of his responsibilities in the classroom including packing and unpacking his things. He was working on following directions that were more complex than one step. He was at times noncompliant but could be redirected by teachers. He was aware of (Exh. 3, pp. 1- 2).
He was classified as having an and recommended to attend class in a community school with counseling services one time per week for 60 minutes, HES one time per week for 30 minutes, occupational therapy services, two times per week for 30 minutes, physical therapy services two times per week for 30 minutes, therapy, individually, three times per week for 30 minutes, and speech language therapy in a group of three one time per week for 30 minutes. An FM Unit was provided. The speech language group and individual services were recommended to be provided in the summer as well (See Exh. C).
The IEP includes a reading goal for the improvement to the first grade level. Short term objectives include learning and reading 50 sight words with prompts and visual cues in 4/5 trial with 80% accuracy; identifying all long vowel sounds in 4/5 trials with 80% accuracy; and sequencing a story of three frames with prompts in 4/5 trials with 80% accuracy (Exh. C, p. 5).
The IEP includes a math goal for the improvement to grade level. The short term objectives provide for rote counting and identifying numbers 1-50 in 4/5 trials with 80% accuracy; adding up to 15 with manipulatives in 4/5 trials with 80% accuracy; and subtracting to 10 with manipulatives in 4/5 trails with 80% accuracy (Exh. C, p. 6).
The IEP includes a writing goal for the improvement of writing skills to the first grade level. Short term objectives include writing his mother’s cell phone number in 4/5 trials with 80% accuracy; writing numbers 1-10 in 4/5 trials with 80% accuracy; copying sentences utilizing appropriate spacing between words in 4/5 trials, with 80% accuracy; and writing his address in 4/5 trials with 80% accuracy (Exh. C, p. 6).
The IEP includes goals for occupational therapy (3 goals), speech (2 goals) 1 , counseling (2 goals), physical therapy (2 goals), the use of an FM unit, activities of daily living(3 goals), safety awareness (2 goals) and social emotional. In total, the IEP includes 21 goals.
The quarterly progress report, dated May 22, 2013, indicates that the Student had been identifying more patterns in words which was improving his ability to read accurately. He had been independently answering more reading comprehension questions. His computation skills were improving and he was then able to find the sum and difference in basic math problems. He was counting to and recognizing higher numbers, and continued to work on pronouncing the numbers correctly. His performance on spelling quizzes had been strong. His handwriting was more legible and he wrote almost his entire name independently on his work. In the classroom he completed routine tasks mostly independently (Exh. D, p. 1).
The Seton quarterly report includes progress toward current goals. The goals include reading and math goals as well as a goal relating to strengthening handwriting by following the lines of standard writing paper. It indicates that the Student had been improving his handwriting skills and accurately wrote almost all of the lowercase letters (Exh. D, p. 2). The report indicates that he could write his first name independently and could write his last name with . He was working on writing his entire name independently without any prompts (Exh. D, p. 3).
testified that the Parent did not indicate any concerns at the IEP meeting (T. 6162). The Parent agreed that she had not expressed any concerns (T. 258). The IEP indicates that the Parent did not express any concerns when asked by the CSE (Exh. C, p. 17). Ms. testified that the goals were generated with the teacher and the Parent and they had every opportunity to add any necessary goals. (See T. 65). The Mother testified that The second speech goal, at the top of Exh. C, p. 8 is not labeled but appears to be goal. after the CSE went through the goals, they asked her if there was anything she wanted to add (T. 235). The only comment she had on the goals was that she wanted him to know her cell phone number (T. 236). She received the final notice of recommendation during the last week of school and waited to call the following week when schools were closed to find out whether the composition of the classroom had changed (T. 239 240).
, the Principal of testified with respect to the offered site. She testified that the recommended special class was available in September of this school year (T. 101). The children in the class were age appropriately placed in grade three, four and five, and were functioning at the levels in their academic disciplines (T. 103). The related services recommended for the summer would have been available via an RSA pass or a public school option (T. 102).
Ms. testified that the school was not closed in June. It was closed after July 1, and at that point it would have been directed by . She testified that she received her messages from (T. 111). She did not receive any phone messages (T. 115). She reiterated that she received multiple messages from , and her parent coordinator was stationed there with the other parent coordinator and they received no messages from the Mother (T. 117). She did not have any information that the Parent tried to contact the school on June 14th or later or regarding any phone calls from the Parent during the summer (T. 119).
The Parent sent a letter to the CSE on August 14, 2013, expressing her attempts to contact the school. She indicated that she would be continuing the Student’s enrollment at Seton “pending my ability fully to investigate an appropriate program.” (Exh. H, p. 2). The Parent signed a contract with on August 16, 2013 (Exh. N). In her letter to CSE Region 7, dated August 14, 2013, the Parent states that when she called P.S. 69, there was a recording that stated that school was closed for the summer and would reopen on August 27 (Exh. H, p. 1). The Student began the Monday after Labor Day (T. 245). She testified that she enrolled the she was a planner and had to make plans so that he would be enrolled in school and arrange for childcare. He the previous year and was sure that this was where he needed to be (T. 247).
, the director of elementary school , testified for the Parents. She testified that the Student attends the primary two class. The curriculum at the school is the FACES curriculum, which is the Functional Academic Curriculum for Exceptional Students (T. 137). It integrates functional daily living skills and functional academics throughout the day (T. 138). For instance, in math, the Student is doing coins and recognition of money, coin values and things like that. They earn money during the course of the school day for appropriate behavior and then they can use that to buy things in the classroom store. He is enrolled in the Language for Learning Program which is a direct instruction program that teaches language to students that’s needed in order to advance more in academic areas. They are taught the words and the context, the sentence structures that are important for oral language and for written language (T. 140).
The related services are provided by contractors from the DOE either under an RSA or with an agency that contracts directly with the DOE (T. 152). The DOE funds the services (T. 164).
DECISION
Program Offered by DOE IEP goals
The Parents assert that the IEP does not provide the kind of detail that would guide the development of an academic program for the Student outside of his familiar environment. They also assert that the academic goals are “scant”. I find, however, that the 21 goals on the IEP are quite detailed. The academic goals of reading, mathematics and writing include detailed short term objectives that would have served adequately to guide the development of a program for the Student. The Parent asserts that the writing goal was inappropriate. Testing on the Woodcock Johnson Third Edition on May 6, 2013, indicates that the Student’s Written Language subtest score was in the Very Low range. His ability to write letters and spell simple monosyllabic words correctly was within the Very Low range, below Kindergarten level. He was adequately able to write various letters (See Exh. 3, p. 5). The teacher report, dated May 22, 2013 indicated that the Student was working on handwriting, forming letters and writing his name (See Exh. D, pp. 2-3).
The IEP includes a writing goal for the improvement of writing skills to the first grade level. Short term objectives include writing his mother’s cell phone number in 4/5 trials with % accuracy, writing numbers 1-10 in 4/5 trials with % accuracy, copying sentences utilizing appropriate spacing between words in 4/5 trials, with % accuracy; and writing his address in 4/5 trials with % accuracy (Exh. C, p. 6).
These goals appear to be focusing on the physical act of writing numbers and letters, using correct spacing and writing important information such as his mother’s cell phone number and his address. Ms. testified that the Student’s ability to convey his mother’s cell phone number would be an indication of his processing and his ability to show he understands numbers and the relationship to her cell phone number. It is processing as well as conveying what he understands (T. 81). The objective relating to writing the numbers one through ten would indicate an understanding of math; the processing of information; and an understanding of numbers one through ten. They would show the ability to physically writing the numbers as well (T. 81). The Student was functioning below the kindergarten level in writing and these goals appear to be appropriate.
The Parents quote Ms. ’s testimony and argue that the purpose of a writing goal is to teach a student to convey ideas and to have an understanding of their environment and to explain specifics through written language (See Exh. IX, p. 8). However, it is not clear what the Parent expected to be included in the writing goal. The Student did not yet have the skills to compose writing to convey ideas. The first step was for him to learn to form letters and numbers consistently.
With respect to conveying ideas verbally, the Student did not have the speech necessary to convey ideas fully. His % intelligible and he used verbal speech combined with . His ability to answer WH questions on literature and identify items which do not belong in a category. He had pronouns as well as qualitative and sequential concepts (Exh. 3, p. 2).
Goals related to ideas were being addressed in the reading and speech goals. The reading goal included as a short term objective related to sequencing a story (Exh. C, p. 5). The speech goals include asking and answering questions about key details in a text (Exh. C, p. 7). There is also a goal regarding demonstrating command of the conventions of English grammar and usage when writing or speaking (Exh. C, p. 8). Based upon the Student’s functioning in writing, I find that the IEP writing goal was appropriate. The Site Offered
The Parents argue that the site offered could not have implemented the IEP based on her knowledge of the school and the classroom she had previously seen because he would be placed with children and because their abilities were not similar to the Student’s (Exh. F, p. 3). The Parents also argue that they were unable to see the offered site due to a failure of the DOE to make the site available for viewing. They assert that it is their right to view the site in advance of placing their child. The Parents argue that the DOE’s evidence of offer of placement is impermissibly retrospective (See Exh. IX, p. 11).
On June 13, 2013, the DOE offered a placement . The Parents assert that the grouping with the other students in the class would have been inappropriate. Challenges to an assigned public school site are considered to be speculative when the student never attended the recommended placement (See State Review Officer Decision, Appeal No. 13161). In R.E. v. New York City Dep’t of Educ, 694 F. 3d 167 (2d Cir. 2012), the Second Circuit explained that the parents’ “[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement” (R.E., 694 F. 3d at 195). In Appeal No. 13-161, the State Review Officer cited a bevy of recent cases that reiterate that view. Specifically, it cites a case in the Southern District of New York which sets forth that “the Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before time that the district would have been obligated to implement the IEP placement, the validity of proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been or allegedly would have been implemented.” A.M. v. New York City Dep’t of Educ, 2013 WL 4056216 at *13. (Appeal No. 13-161 at 14).
For all the foregoing reasons, I therefore find that the recommendation offered by the DOE was reasonably calculated to meet the Student’s educational needs. Program
The program in which the Parents placed the Student at Seton offers a program that integrates academics and activities of daily living which are suitable for the Student. However, the program does not offer any related services but relies upon the services provided by the DOE. However, when a parent unilaterally places a student, services are no longer provided by the DOE. As a result, if the Student he would not be getting any of his related services. The Student requires counseling for 60 minutes per week, HES for thirty minutes per week, occupational therapy for 60 minutes per week, physical therapy for 60 minutes per week and speech language therapy for two hours per week. The failure to provide these many and necessary services renders the program at Seton inappropriate to meet his needs.
I therefore find that the program in which the Student was placed by the Parents at Seton is inappropriate.
Having found that the program offered by the DOE was appropriate, I hereby deny the Parents’ request for tuition reimbursement for the 2013-2014 school year.
The Parents request that I order that the related services, technologies, supports, services and transportation be provided in accordance with the Student’s IEP. Although I find that the DOE offered an appropriate program and therefore deny the request for tuition reimbursement, the DOE continues to be responsible for the provision of a special education program in the private school setting. The Student is pursuant to parental placement and therefore is entitled to the related services and other items set forth on the IEP other than the school program itself.
I THEREFORE ORDER that the DOE shall provide the related services, the assistive technology devices and the transportation set forth on the IEP, dated. May 29, 2013, and shall continue to provide such services, devices and transportation until the CSE reconvenes and develops a new IEP or IESP, as appropriate. Dated: March 13, 2014
Diane Cohen mv
DIANE COHEN, ESQ.
Impartial Hearing Officer DC ;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 ON SEPTEMBER 4, 2013
Parent Exhibits Date of Exhibit No. of Pages
A. Impartial Hearing Request 8/29/13 4
B. IEP 1/9/13 13
DOCUMENTATION ENTERED INTO THE RECORD AFTER SEPTEMBER 4, 2013
IHO Exhibits Date of Exhibit No. of Pages
I. Parents’ Memorandum of Law Undated 16
II. Letter from DOE with exhibits 9/18/13 36
III. Emails among parties and IHO 9/12/13-9/24/13 27
IV. Letter from Attorney for Parents 9/18/13 3
V. Emails among parties and IHO 9/24/13-9/25/13 2
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 31, 2014
Parent Exhibits Date of Exhibit No. of Pages
C. IEP 5/29/13 18
D. Quarterly Progress Report 5/22/13 3
E. O/T Progress Report 5/9/13 2
F. Amended Due Process Complaint 10/10/13 5
G. [Intentionally Omitted]
H. Letter to CSE from Mother. 8/14/13 2
(with 917 fax number)
I. Letter from 9/12/13 1
J. [Intentionally Omitted]
K. IEP from 11/9/12 7
L. Class Schedule and profile Undated 4
M. Program Description – Seton Undated 4
N. Enrollment Contract 8/16/13 5
O. 2012 Tax Return 4/17/13 2 DOE Exhibits Date of Exhibit No. of Pages
1. IEP 5/29/13 23
(with parent letter declination)
2. FNR 6/14/13 1
3. Psychoeducational Evaluation 5/6/13 9
4. Report 4/17/13 1
5. Report 12/19/12 1
6. Classroom Teacher Evaluation 10/9/12 2
7. Progress Report 10/22/12 2
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 7, 2014
Parent Exhibits Date of Exhibit No. of Pages
H. Letter from Parent to CSE2 8/14/13 2 (for a total of 4 (with 718 fax number) pages for Exhibit H)
P. FNR 1/16/12 1
EXHIBITS ENTERED INTO THE RECORD AFTER THE HEARING
IHO Exhibits Date of Exhibit No. of Pages
VI. Order on Pendency 10/1/13 8
VII. Email from IHO to parties 2/21/14 1
VIII. Signed subpoena 9/28/13 1
IX. Parents’ Memorandum of Law 3/6/14 24
X. Signed subpoena 11/8/13 1
Footnotes
[2] Two additional pages were added to Exhibit H to show the different fax numbers. The exhibit has a total of four pages.