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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: December 2, 2013
December 9, 2013
March 6, 2014
March 11, 2014
Actual Record Closed Date: May 21, 2014
Hearing Officer: Judith Schneider, Esq.
APPEARANCES December 2, 2013 December 9, 2013 March 6, 2014 March 11, 2014
Attorney — Student
Parents
Parents
Attorney — DOE
School psychologist (via telephone) — DOE
Attorney — Student
DOE Attorney — DOE
Teacher (via telephone) — DOE
Attorney — Student
Parents
Psychologist (via telephone) — Student
School Administrator (via telephone) — Student
Supervisor at School (via telephone) — Student
DOE Attorney — DOE
Attorney — Student
Parents
Attorney — DOE
On December 2, 2013, December 9, 2013, March 6, 2014 and March 11, 2014, — DOE
I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated September 11, 2013. (Ex. B) I was appointed Impartial Hearing Officer on September 11, 2013. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on October 17, 2013, hearings were scheduled for December 2, 2013 and December 9, 2013, the first mutually available dates for the parties, their witnesses and the hearing officer. (T. 6, Ex. I ) Additional dates were thereafter scheduled.
Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions concerning that were given to the parties. (T.6-9, 27, 138, 306, 312, 414, 384, 609-610, Ex. II)
The current compliance date is June 24, 2014. The record closed on May 21, 2014.
Positions of the Parties
Parents
The parents allege that the student’s June 25, 2012 IEP was procedurally and substantively defective in that the goals , an FBA/BIP was required but not provided, related services were not appropriate in that counseling was not provided, testing accommodations were not provided, a more restrictive environment was not considered and the parents’ expressed concerns were not considered in developing a program that would include necessary transition supports. The parents enrolled the student in the public school placement recommended by the CSE and he remained in that placement until December 18, 2012 when he was removed by the parents. They claim that the placement was substantively not appropriate as implemented, that the student ultimately had panic attacks and became school phobic as a consequence of his attendance there, that the student’s problems were known to the school and that school staff did not act appropriately to address the problems within the school or by referring the matter to the CSE. The parents claim that the DOE failed to provide a FAPE for the 2012-2013 school year.
The student commenced attendance ”) in January 2013 pursuant to the parents’ unilateral placement is a private school which has not been approved by the New York State Education Department as a school with which the DOE may contract for the provision of special education services. The parents claim was appropriate for this student. They seek reimbursement for for the student’s attendance there during the 2012-2013 school year. They assert that equitable consideration do not support limitation or denial of reimbursement. (T. 18-22, 26-27, Exs. B, IV)
DOE
The DOE asserts that the IEP was procedurally appropriate in accordance with applicable legal standards and the student was provided with a program in which he was likely to make meaningful progress. Further, the DOE asserts that the placement could implement the IEP and took appropriate steps to address the student’s transition and anxiety issues.
With regard to Aaron, the DOE asserts that necessary services were not provided in that the school did not provide and the evidence with regard to ”) provided did not demonstrate that the student’s SL needs were appropriately addressed. It also notes that the restrictiveness of the parents’ placement is a factor to be considered. The DOE makes no claims with regard to the equities in this matter. (T. 32-35, Ex. III) Cases Presented
Both parties submitted documents for admission into evidence. A list of the documents in evidence in this matter is appended.
The DOE presented the testimony of the following witnesses: participant in the June 25, 2012 review as school psychologist and district representative; special education teacher who is Nest Coach Cluster at the recommended school.
The parents presented the testimony of Dr. , the student’s private psychologist; School Administrator; ; the student’s mother.
Findings of Fact and Conclusions of Law
A. Factual Findings
With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they testified truthfully in accordance with their recollections and as to the opinions they held.
Background
The following factual findings are based upon substantially undisputed evidence:
The student at the commencement of the 2012-2013 school year in July 2012 and entering the 3rd grade. (Ex. 2) He ” and he had been . (Exs. 2. GG) The student was at grade level and not disputed in this proceeding in which what is at issue is his
(T. 37-38, 41, Exs. GG, IV at n.1) His socialization and adaptive functioning were (T. 39, Ex. FF)
The student the and in the 2011-2012 school year he was (T. 472-473) The is an integrated co-teaching (“ICT”) program designed for students who are on and are high functioning - meaning able to handle the curriculum of general education at their grade level - but need help with social communication and pragmatic skills and the program addresses the areas of socialization, social interactions and social communications. (T. 49-51) provides formal (“SDI”) for the development of the necessary communication and language skills. (T. 226-227, Ex. E) The teacher training component is similar for all schools, including PS 178 and PS 206. (T. 82, 225)
a kindergarten which was under-enrolled, very small and located in the student’s neighborhood near facilities with which he was familiar. (T. 472-474) During the 2nd grade year, his class had a total of 10 children, 8 typically developing and 2 classified 2 teachers, one of whom had . (T. 474-476)
The student had had certain initial difficulties in the Nest program but made progress in Nest as implemented in the appropriateness of that program and placement were not disputed by his parents, teachers, therapists and evaluators. (See e.g. T. 325) Indeed, it is noteworthy that he was described as a “model student.” (Ex. II) The behavioral difficulties the student with anxiety and in situations of sensory overload. (Exs. EE, FF) However, whether or not Nest was recommended by the CSE, a change to another school was required for 3rd grade. (Ex, EE)
An independent evaluation obtained by the parents to, among other things, provide information helpful in making decisions concerning the student’s future educational program had been conducted by the Children’s Evaluation and Rehabilitation Center (“CERC”) at 2011 through February 2012 (“the CERC evaluation”) and included a Context Based Developmental Assessment, a , a Neurodevelopmental Evaluation a School Visit report (observation at PS XXX by one of the evaluators), a Speech and Language Evaluation and a Team Conference Summary Form which summarized the conclusions of the evaluators after considering the various evaluations conducted. One of the CERC evaluators was Dr. a clinical psychologist who had first seen the student in Spring 2011 and was continuing to provide therapeutic services targeting anxiety at the time of the (T. 321-322, Exs. EE, FF, GG, HH, II, JJ, KK) The recommended continuation in the Nest program. (Ex. GG)[1] The evaluators believed that because he was doing so well he had a fair chance of doing well at 206. (T. 326)
The CSE convened on June 25, 2012 (“the review”), to develop a program for the 2012-2013 school year. The following participated in the student’s review: (“ ”) as school psychologist and district representative, the student’s (special education and general education); the student’s providers, a school social worker and the student’s mother. (Ex. 2-14) The IEP noted the outside evaluations and specified that they provided information about current functioning. (Ex. 2-1, 2-2) It noted level in most academic skills but noted concerns about inferencing and performing multi step directions/tasks. (Ex. 2-1) It also noted parent and/or teacher/provider concerns in various other areas including anxiety although progress was noted. The IEP noted the parent’s concern that circumstances at the new school might increase the student’s and that might occur due to the transition. (Ex. 2-1, 2-2) Among other things, the CSE noted the student’s need for priming before a change to avoid Ex. 2-2) The supports the student would have in the program to were discussed. (T. 495)
In the June 25, 2012 IEP (“the IEP”) the CSE specified the disability classification as “autism” and recommended: ICT program (“ ”)1x30 1:1 and 3x45 , 1x30 and 1x30 ”) 1x30 (all services specified to be in “Separate Location Therapy Room” for the program commencing September 2013 and a Summer/Nest program including the same related services. No testing accommodations were specified and standardized assessments and standard promotional criteria were mandated. (Ex. 2)
All participants knew at the time of the review that for 3rd grade the student’s Nest Program placement (“the school”). (T. 81) for grades 3 through 8 operating at capacity and across town. (T. 82, 91, 214-216) Various systematic activities to facilitate transition undertaken and included the student’s visit to the school, visits by members of the school’s staff to the placement and class observation, transmission of reports and written and oral communications/conferences between school staff and consultation at the school by the special education teacher after the student had arrived. (T. 81, 147-148) A Nest summer program was to facilitate transition. (T. 150, 498)
The student attended a Monday-Thursday 4 hour Summer program (4 weeks) at the school which consisted of about 13 children, all classification, general education and special education teachers and various providers. (T. 150-151, 498, Ex. C) There were no other students at the school during that summer session. (T. 498) The student appeared to be generally comfortable in that situation and “loved” the school at that time. (T. 498)
Commencing September, however, the student was in a class of 18, of whom 6 could have IEPs and 5 did. (T. 81-82, 220-221, Exs. D, E). After the commencement of that aspect of the program, the parent reported and/or the school observed various difficulties which included the and/or concerning certain school activities and staff. These were discussed in various emails between school staff and the student’s mother (“the parent”) from September through December, 2012. Those emails also discussed various aspects of the student’s program including changes and strategies and his responses to them. (Exs. J through M, O through T, X, 4 through 25) In emails on October 1 and November 13, the parent raised the issue of the appropriateness of the program being then provided and informed that a more therapeutic school environment was being considered. (Exs. J, T) The school was also informed that the student had commenced . (Exs. R, T, X) Meetings with the principal occurred on October 2 and November 14, 2012. (Exs. K, T, V) Among the issues discussed was school phobia/school refusal. ((Ex. U) By email dated December 18, 2012, the parents informed the principal that the student could not return as a consequence of the continuation of severe anxiety symptoms that it was the opinion of the parents as professionals working with him that he required a placement in a small therapeutic school. (Ex. Y)
By letter dated December 21, 2012, the parents, through their attorney, informed the CSE that the student was being withdrawn from the school and specified specific disagreements with the IEP and the placement. (Ex, A) The CSE was informed that the student would be placed at Aaron for the remainder of the school year and tuition reimbursement sought from the DOE unless the errors were cured. (Ex. A)
An enrollment executed by the parents on December 21, 2012 which required the payment of $33,185 for tuition for January 2013-June 2013. (Ex. NN) The school reports payment on January 2, 2013 in the amount of $33,185. (T. 397, Ex. MM)
The instant impartial hearing request was filed by letter dated September 11,
2013. (Ex. B)
B. Legal Analysis
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prongs 1 and 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]
Prong 1
An appropriate educational program begins with an Individualized Education Program (IEP) which 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 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). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
The Review and the IEP
The parents assert that the IEP was procedurally and substantive defective. I need not address those claims in view of my below discussed conclusions concerning the placement. However, I note the following findings with regard to those claims.
Procedural Defect Claims
The parent asserts that there were numerous procedural defects and that as a consequence the IEP is a nullity. However, whether considered individually or in the aggregate, “[p]rocedural violations … only …[automatically entitle the parents to reimbursement] if ‘they impeded the child’s right to a [FAPE],’ significantly impeded the parents’ opportunity to participate in the decision making process’ or ‘caused a deprivation of educational benefits’ [citations omitted]” R.E. v. New York City Dept. of Educ., 694 F. 3d 167, 190 (2d Cir 2012). I conclude that procedural violations, whether considered individually or in the aggregate, did not have any of those effects in this matter.
Lack of FBA/BIP
It is established that the lack of an FBA/BIP can be the basis for a determination that an IEP is a nullity. R.E. v. N.Y.C. Dep’t of Education, 694 F. 3d 167 (2d Cir 2012) However, I conclude that there was no evidence presented at the time of the IEP meeting that the student displayed behaviors that impeded his learning or that of others sufficient to require an FBA/BIP. 8 NYCRR 200.4(b)(1)(v); 8 NYCRR 200.22(b)(1)(i). Ms. ’s testimony that the that the teacher was unable to . (T. 65) Also persuasive was her uncontested testimony that the issue was not raised by the parent or teachers/providers at the meeting, which supports my conclusion that it was not considered to be necessary at the time even by In these circumstances any behavior plan would be based entirely upon speculation about some future behavior.
Further, the absence of an FBA does not require a conclusion that a FAPE was not provided when a properly developed IEP adequately addressed the student’s behavior problems by providing interventions and supports to address those needs. See R.E.; and see A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F. 3rd 165 (2nd Cir. 2009); Application of a Student with a Disability, Appeal No. 08-064. The IEP discussed the student’s anxiety and specified strategies to address it and relevant goals. Moreover, the student was transitioning to a Nest program school and extensive additional information, although not specified in the IEP, was programmatically provided directly by the student’s teachers and providers and supplemented the information conveyed in the IEP. The parents were aware of transition exchanges. In these circumstances even had the student been failure to provide one is not a basis for a conclusion that the IEP is a nullity. R.E.
Failure to Consider a More Restrictive Environment
The parents assert a procedural defect arising from a failure to consider a more restrictive placement. However, the appropriateness of the continuation program was the consensus of all participants as well as the recommendation of the evaluators who were requested to consider that issue for this purpose. A principal advantage of the Nest program is that it provides a general education program with typically developing peers who can act as models but intensely addressed social and communication needs and it was believed that the student could continue to succeed in that program. Accordingly, even if the failure to specifically discuss a more restrictive placement constitutes a procedural violation, I find that in the circumstances here that error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.
Claims regarding
The parents assert that the issue of and the impact of transition was raised but neither appropriately considered nor appropriately addressed by the inclusion of transitional support services.
However, the evidence shows that the CSE considered and discussed the evaluations obtained by the parents and sought and considered the parents’ concerns as well as information provided by the teachers and providers, all acknowledged by the parent to know the student well. The in general and with regard to transitions was known to the CSE which included a goal focusing on that and also referenced the issue and the need for “priming” to address it. (T. 58-59, Ex. 2-2, 2-7) Further testified that anxiety in those situations was common . The student was not transitioning to a more restrictive program but remaining in which provided an Integrated Co-teaching class with limits on the number of IEP students. (T. 50-51) The program included a variety of activities to visits between schools by student and staff and the parents were aware of those activities at the time of the review. (T. 74, 147-150, 579) Further, with regard to the parents’ claims it is noteworthy that the evaluators upon whose reports the parent relied were familiar with and jointly recommended that the student continue in it. (Ex.
GG) No additional recommendations with regard to a CSE recommendation were made by the CERC team.
Goals
The parents also claim that goals in various areas were omitted or insufficient. With regard to the claim that goal was not included in the IEP, I note that the student’s was present at the review and provided information that was included in the goals. (T.
62) An IEP goal addressed concerns about the student’s and elaborated on what was required and a goal requiring participation in a sports game was also included. (Ex. 2-8) The parent also asserts that goals do not adequately address the student’s issues. However, the IEP includes a goal and it also includes other goals relevant to socialization. (Exs. 2-7, 2-4, 2-5) I conclude that the student’s right to a FAPE was not impeded nor was he deprived of educational benefits by any deficiency with regard to
goals. Appeal 11-040.
With regard to the substantive appropriateness of the IEP, I find that the DOE has established that a was reasonably calculated to enable the student to make meaningful educational gains when the IEP was created. I note with regard to that finding, his prior experiences in that program as well as the recommendation of team which extensively evaluated him and which was familiar with the program. (T. 326, Ex. GG) I also note that the parents concurred in the recommendation as did all the student’s teachers and providers, who the parent acknowledged knew him very well. With regard to a parental claim that , discussed above with regard to their procedural claims, combined to make the recommendation as a whole substantively defective, I give that no weight in view of the foregoing findings in which I determined that additional transition supports were not required. The parent’s claim that should have been added to the student’s program is, even if established, insufficient to determine that the IEP was substantively defective.
Placement Issues
The school district must identify a school which is capable of implementing the IEP. T.Y., K.Y, on behalf of T.Y., v. New York City Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009). The DOE bears the burden to show that it could implement the IEP at an actual appropriate placement and "designing an appropriate IEP in accordance with the procedural and substantive requirements of the IDEA is only the first step." D.C. ex rel. E.B. v. N.Y.C. Dep’t of Educ., 2013 U.S. Dist. LEXIS 42764, at *39 (S.D.N.Y. Mar. 26, 2013). I conclude that it has not met that burden here.
The IEP noted diagnoses not only of autism but of mood and detailed various concerns expressed at the review concerning the student’s ability to appropriately transition. (Ex. 2) These concerns arose not only from the student’s difficulties with any transition/change but also because the environment at differed in a number of ways that might exacerbate the the substantially increased size of the school, the different populations, the larger class size, a noisier environment and a more structured program.
(T. 347, 497) I credit the testimony of the parent that the teachers shared this concern.
(T. 497-498) Further, it was known that a number students had been unable to successfully make the transition between the schools notwithstanding the transition activities built into . (T. 347) I also note knowledge of this student was not limited to what was conveyed in the IEP. The evidence shows substantial oral and written communication between staff of the two schools both before and after the student commenced attendance included information that great academic progress was coupled with anxiety. (T. 224) The parent, moreover, not only promptly shared her concerns with the school but had previously provided contact information for the student’s outside therapists to enable the school to obtain relevant information which information was again provided shortly after the school start in September. (T. 223, 517, Ex. G) Accordingly, I conclude the school had sufficient information and opportunity to early alert it to particular challenges of this student and to address them promptly and appropriately if and when they became manifest.
The DOE asserts and the evidence shows that the school undertook a variety of measures in response to parentally expressed concerns and staff’s observations. Indeed, that is not disputed by the parents.
who saw the student every day and was responsible, among other things, for accompanying students during transitions from their classrooms and arrivals at school.
(T. 507) She testified as to a variety of supports provided to the student both routinely as part of the Nest program and particularly for him.
the program provided during the summer in which the student participated and did well and which was, among other things, to facilitate transition. (T. 151-152) She described strategies to alleviate and manage , individual schedules, social stories and calming routines. (T. 230-231) Although she stated that the student’s anxiety when dropped off did not seem particularly different from that she observed in all children in she detailed the school’s responsive actions. (T. 153) These included a procedure by which the student could “reset” himself using classroom supports and the use of an OT room with a calming routine provided to him as well as the provision of a social story describing the routine to prepare him. (T. 154, 157)
Further, the school maintained regular communications with the student’s parents including emails and phone calls, as well as face to face communications. (T. 163-165) In mid-November the school met with the parents in response to continuing drop-off concerns and developed a different protocol in which the student was met by an AP and toured through the building and access to a specially decorated area was provided. (T. 165-166) characterized this change as the only significant one made. (T. 250) However, other changes were described including: To respond to parent information concerning the about the music used in Movement class, a special playlist was developed for the student which enabled him to know what to expect (T. 168-170); In response to parental concerns about the concerning the cafeteria, the school developed a program in which students with similar issues were provided with a designated area and various activities were provided (T. 174-175).
testified that measures taken succeeded and resulted in enabling the student to display good participation throughout the day and to enjoy various aspects of the school program that he had not been able to. (T. 153, 154, 155, 168-170, 179-181) She stated that the conduct of an FBA and the preparation of a BIP had been had been discussed by school staff but it was rejected as unnecessary since it was believed that the function of the behavior was known- the the strategies being utilized were having a positive effect on the behavior. (T. 248) Although she testified that the supports were sufficient, without the need for a counseling mandate, to allow the student to make educational progress, it is noteworthy that the student was eventually provided with “at-risk counseling” and that the school was considering seeking the addition of that service to the student’s IEP. (T.
279) However since the school strategies were showing a positive effect, there was no need to reconvene the CSE at that time. (T. 231, 233, 248)
I note that documentary evidence of progress with regard to social-emotional issues has not been submitted. However, whatever the school was doing and whatever positive effect at school it was seeing, I conclude that the evidence shows that the student’s anxiety related to school was sharply increasing at home, resulting eventually in school refusal and regression. A disparity at home even while a “model student” at school had been noted in the . (Ex. II) The parent was keeping the school apprised of the escalating difficulties she was having acknowledged that the school was aware of them. I find no support for a conclusion that the actions taken by the school would have reversed that direction.
The persuasive evidence shows the following with regard to the continuing and escalating impact of the to school:
Difficulties relating to school issues, particularly the lunchroom, started in midSeptember and were known to the school. (T. 502)
The student was late on numerous occasions commencing in September and opined that that was a result of the student’s refusal to exit his mother’s car upon arrival. (Ex. Q)
On September 25 the student adamantly informed a teacher that none of her proposals in view of her one day anticipated absence was acceptable and he would resolve the issue by not coming to school. (Ex. H)
On October 1, the parents requested a meeting with the principal noting anxiety and difficulties in getting him out of bed and into the car. (Ex. J)
By October 3, the student was waking up in the middle of the night afraid to go to school. (T. 515, Ex. L)
On October 4, the in the . (Ex. M) The student had attack prior to entering
206. (T. 515)
On October 9, the and would not by telephone. The school was at that time advised were being considered. (Ex. P)
By November 6, the school was had commenced. (Ex. S)
On November 7, the parent reported that the . (Ex. S)
On November 12, the parent reported that the student was and was adamant about not going . (Ex. S)
On November 13, the parent reported that the student to and that as a consequence . An offer of a consult with the as again made to the school. (Ex. T)
The had continued and although a “ was implemented in mid-November absences continued and the parent continued to with regard to what would happen in school.[3]
On November 16, the school was that the student was being treated for severe anxiety and panic attacks which could result . (Ex. R)
On December 6, the parent reported that student in-school behaviors indicating stress included the student chewing through a shirt a day. It was noted that he was now taking two medications. (Ex. X)
The evidence therefore shows the that the program at 206 was not working for him.
The testimony of Dr. was consistent with the testimony of the parent and persuasive. She stated that the student’s coping strategies enabled him to function during the day but at night his concerns day. (T. 364) Unlike many others , this student was aware of and could communicate his feelings. (T. 322) The student reported to her that .
(T. 364) As a consequence of what the student was experiencing she quickly became aware of, her treatment goals changed almost immediately but nevertheless the student seriously regressed and by December he was barely able to function even with regard to academic work. (T. 332, 351, 369, 378) opined that the school was clueless about what the student needed. (T. 335) She stated that in his situation in this school desensitization did not work as a technique because his fear escalated very rapidly. (T. 206, 366) It is noteworthy with regard to this testified that she left several messages which were not returned before finally being contacted by the school. The evidence shows that that did not occur until late November after a meeting with the principal. (Ex. Q)
I note that this is not a case in which placement deficiencies in relation to a student’s needs might be considered speculative. R.E. v. N.Y.C. Dep’t of Education., 694 F.3d 167 (2d Cir. 2012). In this matter the student was in the placement provided for several months during which time the evidence shows his socio-emotional situation regressed substantially notwithstanding concurrent treatment by parentally provided mental health professionals and the use of medications not previously required. It is noteworthy had previously recommended his enrollment but concluded that it was not appropriate in view of the student’s immediate and continuing difficulties and substantial and rapid decline. The persuasive evidence shows that the student could not make meaningful gains at the placement provided.
Based upon the foregoing, I find that the DOE has failed to establish that it provided a placement that could implement the IEP appropriately. Therefore it has not established that it provided a FAPE.
Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
Beth Fried, Aaron Principal for kindergarten-8th grade, and Tara Mallon, a certified special education teacher and the Aaron Educational Supervisor who supervised the student’s classroom team in the 2012-2013 school year, testified concerning the Aaron program the student received. (T. 387, 410, 413) Additional testimony regarding that was provided by Dr. and the parent. I find that testimony credible.
The evidence shows with various deficits including speech but does not accept children who are ” or . 389) There are 99 children separate facility. (T. 390) Maximum class sizes range from 8 (kindergarten) up) and there is 1 teacher and 1 assistant teacher for all classes. (T. 390) All teachers have Masters degrees and State certifications and most assistant teachers have or are working toward that. (T. 391, 402) Educational supervisors provide direct supervision to teachers. (T. 392) In-school and outside opportunities for on-going professional development are provided. (T. 391) Aaron follows New York State standards with modifications and adaptations as appropriate for its students and is aligning its curriculum with the common core. (T. 392,
437) A multi development and sensory approach visuals and kinesthetic techniques to accommodate various learning modalities are utilized and an emphasis on language in every aspect of the curriculum is utilized with individualization as needed. (T. 392-395,
390) are available at the school and are provided based on student needs. (T. 395,
408) The student at least 2x30 per week and counseling at least 1x30 per week as well as a whole group social skills class. (T. 404-405, 407, 408)
The student’s classroom team consisted of the teacher and assistant teacher, the educational supervisor, an occupational therapist, a speech therapist and a counselor. (T. 413-414) The needs of class members being able to think flexibly. (T. 415). There were 8 students in his class and their reading and math levels by the end of the year ranged from mid 4th to 5th grade. (T. 416) At the end of the 2012-2013 school year, the student was nearing ability and skill levels and there were approximately 6 students in his group. (T. 420-421) His math group also consisted of 6-7 students and was based upon skill and need levels. (T. 421) Specific goals were developed for this student in all necessary areas. (T. 435-453, Exs. AA, BB)
The student worked with a counselor and classroom strategies were utilized to address his anxiety including his need for predictability and fear of doing something wrong. (T. 433-435) Strategies and accommodations utilized for him included prompts, an FM system (phonic ear), earphones, Smart Board, sensory tools to aid in selfregulation, social thinking language, team meetings, consultation with outside therapists, supported lunch time, supported socialization and the use of a check list to aid him when monitoring his own day. (T. 348-350, 373, 417, 419-424, 430-43, 435-448, 456-457)
The student progressed and made academic , developed coping strategies, was more independent and and no . (T. 418-420, 438-449, 452-453, 567)
With regard to the appropriateness of the parental placement, the DOE asserts that necessary services were not provided in that the school did not provide and the evidence with regard provided did not demonstrate that the were appropriately addressed. (T. 403, 405-406, Ex. III) It also notes that the restrictiveness of the parents’ placement is a factor to be considered. However, it is well established that an appropriate parental placement need not provide every related service ordered by the DOE and it need not address student’s related service needs precisely as specified in the IEP. In this matter, the student’s speech language needs were primarily in the area of pragmatics and I find the evidence that this was appropriately addressed based program persuasive. (T. 405) I note with regard to does not provide specific generally but rather , built into the program, to develop skills. (T. 226-227) I note with regard to any LRE issues that it is well established that parental placements need not meet the LRE standards required of the district.
The evidence shows that the parents provided an individualized program which addressed the student’s unique needs utilized strategies identified by the CSE and provided the structure, support and predictability that the evidence shows this student required. Accordingly, I find that they have met their burden to demonstrate that the placement was reasonably calculated to enable the student o make meaningful gains.
Prong 3
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). The DOE has the burden of proof with regard to equitable considerations. Educ. Law 4404 [1][c]
In the instant matter the DOE has not claimed a lack of cooperation by the parents. Nor, I find, would the evidence support that claim here where the parents attended the CSE review, provided the evaluations upon which the CSE relied, sent the student to the recommended school and kept school officials informed as to their concerns. Further, I note that DOE has not alleged that any equitable considerations support a bar or limitation of reimbursement in this matter. (Ex. III) I conclude that the parents are entitled to reimbursement requested.
Order
The DOE shall immediately reimburse the parent $33,185 for the period JanuaryJune 2013 upon the receipt of evidence showing that the tuition charged was usual and customary rate and that full payment was made by the parents. Dated: June 6, 2014
Judith Schneider mv
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
PARENTS
A Request for transportation,10/21/12, 4 pages
B Due process complaint,9/11/13,9 pages
C E-mail correspondence,6/25/12 to 6/26/12,2 pages
D E-mail correspondence,9/25/12,1 page
E Handbook, September 2012,4 pages
F E-mail correspondence,9/21/12,1 page
G E-mail correspondence,9/25/12,9/26/12,3 pages
H E-mail correspondence,9/28/12,1 page
I E-mail correspondence,10/1/12,1page
J E-mail correspondence,10/1/12,3pages
K E-mail correspondence,10/2/12, 1page
L E-mail correspondence,10/3/12,10/4/12, 2 pages
M E-mail correspondence,10/3/12,10/4/12, 2pages
N E-mail correspondence,10/4/12,2pages
O E-mail correspondence,10/4/12,1page
P E-mail correspondence,10/9/12,1 page
Q Letter to parent,10/11/12,1page
R Letter from Dr. 11/16/12,1 page
S E-mail correspondence, 11/6/12,11/7/12,11/12/12,3 pages
T E-mail correspondence, 11/13/12, 3pages
U support plan,11/14/12, 1 page V E-mail correspondence,11/14/12, 3 pgs.
W E-mail correspondence,11/25/12,1 page
X E-mail correspondence,12/5/12,1 page
Y E-mail correspondence,12/18/12,1 page
Z Grade three report card,11/9/12,1 page
AA February report, February 2013,8 pages
BB Spring report, May 2013, 5 pages
CC OT plan, February 2013,2 pages
DD progress report, May 2013,2 pages
EE developmental Assessment,1/3/12,6 pages
FF evaluation, 1/23/12,7 pages
GG conference Summary, 2/29/12,[2] pages
HH Psycho-educational evaluation, 12/15/11, 5 pages
II Neurodevelopmental evaluation, 12/13/11,10 pages
JJ School visit at , 12/11/11, 3 pages
KK LL class schedule, 2012-2013, 1 page
MM Affidavit of payment, 2/25/13,[1] page]
NN enroll contract, 2012-2013.12/21/12, 4 pages
DEPARTMENT OF EDUCATION
3 FNR, 6/25/12,1 page
4 E-mail correspondence, 9/21/12 to 9/28/12,2 pages
5 E-mail correspondence, 9/21/12 to 9/26/12,3 pages
6 E-mail correspondence, 9/27/12 to 9/28/12,1 page
7 E-mail correspondence, 9/28/12 to 10/5/12,2 pages
8 E-mail correspondence, 9/28/12 to 10/7/12,3 pages
9 E-mail correspondence, 10/1/12 to 10/4/12,2 pages
10 E-mail correspondence, 10/1/12 to 11/13/12,2 pages
11 E-mail correspondence, 10/2/12 to 10/4/12,3 pages
12 E-mail correspondence, 10/2/12 to 10/5/12,2 pages
13 E-mail correspondence, 10/9/12 to 10/10/12,1 page
14 E-mail correspondence, 10/15/12,3 pages
15 E-mail correspondence, 10/16/12 to 10/17/12,2 pages
16 E-mail correspondence, 10/16/12 to 10/17/12,1 page
17 E-mail correspondence, 10/23/12, 1 page
18 E-mail correspondence, 10/25/12, 1 page
19 E-mail correspondence, 11/16/12, 1 page
20 E-mail correspondence, 11/18/12 to 11/27/12,3 pages
21 E-mail correspondence, 11/25/12, 1 page
22 E-mail correspondence 11/27/12 to 11/30/12,1 page
23 E-mail correspondence, 12/2/12 to 12/13/12,1 page
24 E-mail correspondence, 12/5/12, 1 pg.
25 E-mail correspondence, 12/11/12 -12/1812 2 pgs.
IMPARTIAL HEARING OFFICER
I Prehearing Memorandum II Compliance date extension decisions III DOE closing memorandum IV Parents closing memorandum
Footnotes
[1] Exhibit GG constitutes the recommendation of all the evaluators after conferring concerning the results of their individual evaluations. (T. 325-326)
[2] In their impartial hearing request, the parents asserted that that the IEP is procedurally defective because testing accommodations were not included. (Ex. B) That claim was not addressed in the parents closing memorandum and therefore appears to have been abandoned. Nevertheless, with regard to that issue, I note that testified that she customarily discusses that at reviews and if a parent asserts they are needed but the CSE has decided not to include them that is noted in the IEP under parent concerns. (T. 79-80) There is no indication in the IEP that that was raised by the parent or anyone else at the review and there has been no testimony by the parent that it was. Further, the CERC evaluation obtained by the parent does not recommend that. (Ex. GG) Garcia persuasively testified that there was nothing in the information provided that indicated that the student could not sit down and take a test when primed as noted in the IEP. (T. 108) The student’s behaviors and how to address them were addressed in the IEP and I conclude that specific accommodations relating to test taking were not required for this student.
[3] The attendance record is not in evidence although it was transmitted to both parties during the hearing and the parties were reminded that it was not in the record. I find credible the testimony of the parent concerning the extensive absences and note that it has not been contested. (T. 205)
[1] Due process response, 9/20/13,3 pages
[2] IEP, 6/25/12,14 pages