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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: December 9, 2013
January 8, 2014
Actual Record Closed Date: February 15, 2014
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2013
District Representative Department of Education
Attorney Father Mother Interpreter Special Education/IEP Department of — Parents
(via telephone) Teacher Education Assistant Principal Department of
(via telephone) Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2014
District Representative Department of Education
Attorney Father Mother — Parents
Parents
(via telephone) Director of Special Needs
INTRODUCTION
On December 9, 2013 and January 8, 2014 I conducted an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1), regarding the education program of a school-aged child, (“the child”). The hearing commenced at 10:00 a.m. and 12:30 p.m., respectively and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
The student is seven years seven months old and is classified as having an ”). He is in the second grade and is independently placed in at (“ ”), a private school in Brooklyn, New York.
In a letter dated September 13, 2013 the parents, by their attorney Esq., filed a due process complaint (“Complaint”) alleging that the Department of Education failed to provide the child with a FAPE for the 2013-2014 school year. The Complaint alleged, among other things, that the December 21, 20132 IEP was not calculated to provide the child with educational benefits and that the parent was denied a meaningful opportunity to participate in the development of that IEP. It asserted that the IEP meeting was held without first properly assessing the child’s “present levels of performance” and that the CSE failed to develop assessment reports, failed to provide an appropriate program/placement for the child in the least restrictive environment (“LRE”) and failed to develop an appropriate FBA and BIP to address the child’s behavioral needs (Parents’ Ex. A at 2). The Complaint also alleged that the can provide the child with an appropriate educational benefits in a mainstream setting (Parents’ Ex. A).
The Department of Education filed an Answer indicating that the child had previously been classified as having that he was classified as a child with having at the IEP meeting on December 21, 2013 and that the program recommendation on that IEP is for a 12:1 special class. The Answer also indicated that in making the program determination the CSE relied on a Social History or Social History Update, a Psychoeducational evaluation, a classroom observation, related service reports/evaluations and teacher progress reports. The Answer states that no other programs were considered for the child and that a Final Notice of Recommendation (“FNR”) was issued on January 14, 2013 for a class (Parents’ Ex. B).
I was appointed as the Impartial Hearing Officer in this case on September 19, 2013 and the original compliance date was December 1, 2013. Pursuant to a request by the parents on October 31, 2013 for the availability of witnesses and without objection by the District, the compliance date was extended to December 30, 2013 and a hearing date was scheduled for December 9, 2013. At the conclusion hearing of the hearing on that date and pursuant to a request by both parties for the availability of witnesses the compliance date was extended to January 29, 2013 and a hearing date was scheduled for January 8, 2014. At the conclusion of the hearing on that both parties requested an extension of the timeline for the receipt of the transcripts and the issuance of a Decision and Order and the compliance date was extended to February 28, 2014.
All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.
THE PARENT’S POSITION
, Esq., represented the parents at the hearing. He alleged that the Department of Education did not provide the student with a FAPE for the 2013-2014 in that the IEP was procedurally and substantively defective and that the program was not appropriate in that it was not the LRE for the child. He also alleged that was an incorrect classification for the child. Mr. maintained that is an appropriate placement for the child for the current school year and that the equities of the case support the parents. Mr. asked that the Department of Education be ordered to pay the child’s tuition at the for the current school year.
THE DEPARTMENT OF EDUCATION’S POSITION
represented the Department of Education at the hearing. He asserted that the Department of Education offered the child a FAPE for the 2013-2014 school year, that is not appropriate for the child and that the equities support the Department of Education.
ISSUES TO BE RESOLVED
1) Whether the IEP dated December 21, 2012 was reasonably calculated to provide the child with educational benefits; 2) Whether the proposed placement in a class with related services provided the child with a FAPE in the least restrictive environment (“LRE”); 3) Whether the child was correctly classified as a student having an ED; 4) Whether is an appropriate placement for the child; and 5) Whether the equities of the case favor the parents.
FINDINGS OF FACT
The Department of Education’s Case
is special education /IEP teacher for the CSE ( : 10).[1] has for programs for students with “all kinds of disabilities,” Integrated Co-Teaching (“ICT”) classes on all grades, Special Education Teacher Support Services (“SETSS”) and the related services of , , and adaptive physical education ( : 11-12). The child began kindergarten at P.S. 169 for kindergarten in September 2010 and was in a self-contained class ( : 12, 50). The child was also in a self-contained class for first grade. On November 15, 2011 the IEP team held a meeting because, based on the child’s behaviors, the child’s first grade teacher wanted to have him reevaluated to see if the placement was appropriate. On December 8, 2011 , M.D. conducted a psychiatric evaluation of the child at ( 41-44). The psychiatric evaluation report states that the child and he was diagnosed with ( : 20, 39, 74; DOE Ex. 5 at 3). The evaluation did not indicate any either against the child’s peers or the school staff ( 74; DOE Ex. 5).
The school psychologist, Lorraine Velazquez, conducted a psychoeducational evaluation on December 12, 2011 (Parents’ Ex. 6). The Wechsler Preschool Primary Scale of Intelligence III (“WPPSI III”) was part of the evaluation and determined that the child scaled an average range on all cognitive abilities ( : 66, 60, DOE Ex. 6 at 2). Ms. administered the Scale which indicated that the probability fell within the possible range ( : 75-76; DOE Ex. 6 at 3-4). Ms. testified that despite the fact that the psychiatrist did not diagnose the child with any , the child was not classified as a child because his primary issue was “emotional.” She explained that she reached that conclusion based on his behaviors, as well as the ongoing reports and observations at and the reports submitted by the child’s preschool and the FBA ( : 76-77). In support of that testimony Ms. explained that her understanding of an “Axis IV: Problems related to social environment,” which was included on the (DOE Ex. 5 at 2), refers to “relating in a classroom situation and behaviorally” ( : 95-95). Ms. described the child’s socially inappropriate behaviors as “[o]utbursts, difficulty managing when he didn’t get his way or when things were not proper for him” and problems with “limits.” She also testified that the child “could not always respond appropriately, but generally would call out, would be out of seat, was physically very active, could not focus” ( : 96).
After the evaluations were reviewed the IEP team determined that with the support of a crisis paraprofessional and classroom management strategies, the child began to show progress and the school recommended the same program for the following year. According to SESSIS an IEP was “finalized” on January 24, 2012. Ms. did not have any personal knowledge of when that meeting took place or whether the parent was present at that meeting ( : 49-52, 97). The Department of Education did not submit a copy of an IEP with that date.
Ms. participated in an annual review IEP meeting for the child on December 12, 2012; that IEP was effective until December 2013 ( : 12-13). The meeting took about 30 minutes ( : 27). Other attendees at the meeting were the child’s mother and the child’s classroom teacher, Ms. There was no general education teacher present at the meeting because the child was in a self-contained class and not an ICT class ( : 28). Ms. recalled that she and Ms. were in Ms. classroom on the second floor during the meeting because the class was returning from lunch at that time. The class and the paraprofessional were in the room for about 15 minutes during the time Ms. and Ms. were working on the IEP ( : 27-28). The child’s mother had had surgery and could not ascend the stairs and so she attended the meeting in a room on the first floor of the building and participated in the meeting by telephone ( : 13-14, 26-27).2
The psychoeducational evaluation dated December 12, 2011 was reviewed at the meeting as was the December 8, 2011 : 15-16, 68-69; DOE Exs. 5, 6). The child was one of the “higher functioning students” in academics. The child was in the first grade at the time of the meeting and he was on a first grade level in reading and math ( 15-16). Ms. testified that the child is capable of functioning at his age in a small group setting with a paraprofessional ( 71). The school never gave the child a formal standardized academic achievement test. Rather, the child’s academic achievement information was based on informal teachers’ reports ( : 71-73).
Ms. testified that she can interpret a psychoeducational evaluation based on her training and “coursework.” However, in order to consider these reports in making a classification recommendation and other recommendations on the IEP so that they become a functional part of the IEP, they must be interpreted by a school psychologist. There was no school psychologist present at the December 21, 2012 IEP meeting, which was an annual review ( : 86-87). At an annual review the teacher “incorporates whatever information” the team has on the child from the reports. That information was not “interpreted” at the review but rather was considered on its face ( 87-88). The IEP team classified the child as having an which was his classification when he came to the school as a pre-K student ( : 16). The program recommendation was for a 12:1 class with the related services of , physical therapy, occupational therapy, counseling, adaptive physical education and a full time crisis management paraprofessional ( 14-15; DOE Exhibit 1 at 12-13). Prior to the meeting Ms. and the teachers discussed an ICT class for the child but felt that “due to difficulties” it would not be appropriate. They also determined that the child was not an appropriate candidate
The IEP does not indicate that the mother’s participation was by phone ( : 25; DOE Ex. 1 at 18). for mainstreaming ( : 29, 84). The parent was not provided with any documents translated into Spanish and the IEP was not translated into Spanish, but Ms. discussed them with the parent in Spanish ( : 84-85).
On January 4, 2013 the classroom teacher developed an FBA and a BIP for the child ( : 13; DOE Ex. 2). The purpose of the BIP was to address the child’s impulsive behaviors and inability to attend to a task ( : 17). The only targeted behavior on the BIP is “interrupting an adult or a peer” ( : 78; DOE Ex. 2 at 2). Neither the IEP nor the BIP include the interventions that were to be used to address that behavior ( : 80-81, 90; DOE Exs. 1, 2 at 2). The child and does not children. According to the FBA his only ( : 102).
During the 2012-2013 school year there were times that the child was brought to Ms. ’s office for a “time out period” of “10 minutes or so” because he was not able to stay on task ( : 17-18). However, the child was doing well in his class that year and there were no significant behaviors due to the “many things” that the school had in place for him, including the paraprofessional ( : 18). Without the support of the paraprofessional there were “some difficulties” with the child’s behavior ( : 19-20).
Ms. testified that the child’s mother agreed that the child had made “significant progress in school,” that the child was “certainly very bright” and that he still needed the self-contained class ( : 18-19). The child’s mother came to the school in January 2013 for a “secondary meeting” to discuss the child’s progress, some of the strategies that were being used and his academic progress. At that meeting the child’s mother signed the FNR and Ms. believed that she intended to keep the child at the school ( : 20-21).
The child began the 2013-2014 school year in September . There was one other student in his class classified as having the other students were classified as having ( 79). In October the child was ” and the school left messages at home to find out the reasons . The parent subsequently brought a letter to the school indicating that the child was at 21-22). Ms. was not aware that the child’s parents had requested an impartial hearing at the beginning of the 2013-2014 school year ( : 23).
has worked for the Department of Education since 1990.[3] She does not have a license in special education but took credits in that area for her supervisory license. During the 2012-2013 school year Ms. was the assistant principal in charge of kindergarten, first and second grades at ; the school had one ICT class on each grade and three classes ( 108-109, 115-116).
Ms. knows the child, who was in the first grade during the 2012-2013 school year ( : 108-109). She conducted two formal observations of the child’s teacher during that year as well as informal walkthroughs in the classroom ( : 110).
At the beginning of the child’s first grade year (2012-2013) he had “some meltdowns” and “some outbursts” and the school called the parent to review a behavior plan devised by the teacher in which the parent would kept informed of what occurred in at school.[4] After October 2012 the child’s behavior improved with the assistance of his paraprofessional and the behavior plan ( : 112-113, 117-118, 123-124). The paraprofessional was responsible for refocusing the child when required and for providing “time out” and “sensory input” when the child had a “meltdown.” The paraprofessional was supposed to follow the BIP. However, while the BIP includes the targeted behaviors, the expected changes and a checklist, it does not include any interventions for the paraprofessional to work on with the child ( 114-115, 120-122). Although the child’s behavior improved in the first grade he was not recommended for a less restrictive environment such as an ICT because he still required a paraprofessional and because all of the teachers and providers believed that the program was appropriate ( 118-119).
The 12:1 class recommended for the child for the 2013-2014 school year had students in second and third grade who were higher functioning academically than the students in the child’s first grade class. The child’s mother observed that class and Ms. testified that she “seemed content” and was happy that the child’s class for the 2013-2014 school year would be on his academic level. ( : 119, 125-126, 129).
The child began the 2012-2014 school year at and Ms believed he attended the school in September and October. Ms. did not know the child was leaving the school until the special education liaison told her that he was no longer there ( : 127-128). The Parents’ Case is the child’s mother.5 At the time of the hearing the child He attended in Brooklyn for class each of those years (SI: 171-172). An IEP meeting was held on December 21, 2012. went to the school for the meeting. She stayed in a room on the first floor since she testified that Ms. was in the room with her and that Ms. , the child’s teacher, was upstairs, and they communicated by telephone ( : 173-174, 180). Ms. was not on speakerphone but would speak to who then spoke to in Spanish (SI: 181182). For part of the time the assistant principal was in the room with nd Ms. 182). Over the phone they discussed that the child was “doing better,” that he “was advancing” and that his behavior was better but that he still needed to be in the same program, which was a class. wanted “what was best” for the child and she believed “that’s what they were trying to offer” (SI: 175, 183). However, wanted a school with fewer children because at home the child was that he saw other children do at school (SI: 176-177). When she asked people at the school if the child still needed therapy the replied that he did and “left is as it was” (SI: 177-178).
Although she was told that the child was “getting better” SI did not see any advancement. He was not doing very well with his homework, he was not paying attention and he wanted to do “exactly what the other” children were doing. She told the classroom teacher and the administration about her concerns but they did not address any of those issues (SI: 185-186).
During the summer after first grade . She liked the school because it had fewer children than and had general education students ( ). The child began second grade at ( ). did not notify anyone at that she was going to send the child but on September 23, 2013 the parents signed an enrollment contract for the child to attend Adelphi for the second grade ( : 171-172, 186, 188; Parents’ Ex. C). Iphigenia Romanos is the interim head of and the Director of the special needs program at the school.[6] is a mainstream school that has a program called which is an educational program for who have various disabilities; approximately 30% of the student population is in that program (Romanos: 139-140, 164).
The child is in the second ; he began at the end of September 2013. When the child’s parents came to the school and met Ms. told her the issues that she believed to be problematic in the child’s public school class, including the fact that she felt the child’s academic needs were not being met because the class was so disruptive (Romanos: 140141).
At the child is in an integrated second grade class with five other students; three are general education students and three are special education students. He receives speech therapy, social skills training and once a week he has counseling with Ms. who is a New York State certified school guidance counselor. Ms. works with the child on social skills, personal space, interrupting, calling out and “turn taking” (Romanos: 146148, 151-152, 154).
The child works individually with the special education teacher, Ms. on organizational skills, writing, spelling, time management, focusing and following directions. He also works with Ms. in small groups and Ms. pushes into those sessions. Within the classroom the child’s work is modified, he has accommodations for exams and the teacher uses different learning styles and modalities to teach him. In addition to the classroom the child participates in the mainstream for lunch, assembly art, music, computers, recess and gym (Romanos: 141-144, 147).
The school has not administered any standardized tests to the child but based on teacher observation he is and reading but struggles in some areas within a given subject. For example, while he is “very strong” in spelling he struggles with writing samples and staying focused while writing and reading ( : 144-145, 158). The child get additional
5 testified in Spanish with the assistance of an interpreter. time and some of the teaching strategies, but not the content, are modified for him ( s: 161-162). The child does not exhibit any and Ms. described him as a “well behaved sweet young man” who asks a lot of questions and may raise his hand and interrupt sometimes ( : 145).
The child’s teachers have reported to Ms that he has improved since the beginning of the school year. In particular, Ms. noted that even though he still needs is able to stay and than he was able to do at the beginning of the school year. The child is also ” because there is a behavior chart in place that his friends, personal space and[7] taking turns ( : 149-151).
The child is receiving his at the school; however, the school does not have physical therapy or occupational therapy ( : 154-155). Ms. reviewed the child’s December 2012 IEP. She opined that she does not believe he requires a crisis paraprofessional and he does not have . Nor did she believe that the child required a BIP as included in the IEP ( : 146, 155-156). Ms. testified that the school sees them to be atypical ( : 157-158). She believed that the academic goals on the IEP are appropriate for the child ( : 158-160).
Ms. believed that for the child for the current school year in that he “thrives in a small environment” and when he is “around students who are and are interactive in class.” The child has friends in the class. As a result he is better able to focus and do his academic work ( : 151). Ms. explained that the child’s class at Adelphi is less restrictive than a class in a public school because the public school program all of the 12 students in the class would have some type of disability. At all of the students are mainstreamed and three of the six students in the child’s class are general education students ( 163-168).
The child’s tuition contract at for the 2013-2014 school year is $40,950.00 ( : 148-149; SI: 179; Parents’ Ex. C). The child’s parents have not yet made any payments because they are “struggling financially” and hoping to prevail at the hearing (Romanos:
148-149). does not work and the child’s father works at a supermarket. They cannot pay the tuition by the child’s father said he will “do whatever it takes to try” (SI: 180).
CONCLUSIONS OF LAW and DISCUSSION
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182. 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.
The legal standard applicable to a request for reimbursement or, under particular circumstances, prospective payment, for educational services such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parent, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parent were appropriate; and 3) equitable considerations support the Parents’ claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053. I.
To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).
In developing an IEP a school district must comply with the procedural requirements set forth in the IDEA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. R.E, 694 F.3d at 175,190 citing Rowley, 458 U.S. at 175, 207. While a substantively inadequate IEP automatically entitles a parent to reimbursement, not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA. Id.; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; R.E, 694 F.3d at 190.
I find that several procedural and substantive violations deprived the child of a FAPE for the 2012-2013 school year.
A. The parents allege that SI did not have the opportunity to meaningfully participate in the IEP meeting (Parents’ Ex. A at 2; Hearing: 194). At the outset, Ms. testified that during the IEP meeting she was in the classroom with the child’s teacher and that was in a room downstairs participating by telephone because and could not go up the stairs ( : 13-14, 26-27). SI, however, testified that Ms was in the room with her downstairs during the IEP meeting and when she was consistent on her recollection when asked about it several times. On this issue I credit testimony that Ms. as in the room with her at the IEP meeting.8
The parents of a student with a disability must be afforded and opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student in accordance with Federal Law. 8NYCRR 200.5(d)(6) citing 34 C.F.R. sections 300.613 through 300.625. A school District must provide a parent with a copy of the Procedural Safeguards Notice prescribed by the Commissioner of Education at least once a year and that Notice must be provided in the native language of the parent. 8 NYCRR 200.5(f)(2)(3). Ms. testified not provided with any documents translated into Spanish prior to, or at, the IEP meeting, including the IEP. Rather, Ms. testified that she “discussed” the documents with SI in Spanish. I find that the failure of the CSE to provide with documents used in the development of the IEP to be a procedural violation that rises to the level of a denial of FAPE. Without access to those documents was not fully apprised of the basis for the decision to keep the child in a self-contained class or retain the classification . Nor was she able to effectively participate in the creation of the goals on the IEP. Indeed, testified that she simply relied on the opinion of Ms. when they told her that the child needed to remain in a self-contained class. In addition, without the Procedural Safeguards Notice was not adequately advised of her rights at the IEP meeting or of the procedures she had to follow if she wants to contest the IEP.
In addition, I find that the IEP meeting itself did not allow for meaningful participation by and constituted a procedural violation. As noted above, both Ms. and testified at the hearing that although came to the school to attend the IEP meeting in person, she participated by telephone in a room on the first floor while the child’s teacher was in the classroom on a different floor. The meeting was not conducted as a conference call by speakerphone. Rather, testified that Ms. was in the room with her, spoke to the child’s teacher on the phone and then translated the teacher’s comments for her in Spanish. While the CSE may use telephone or conference calls to ensure a parent’s
SI referred to Ms. by her full name but identified Ms. as the speech teacher. participation at an IEP meeting, 8 NYCRR 200.5(d)(1)(iii)(7), here SI appeared in person for the IEP meeting and she was entitled to meet with the team in person. I find that the method of communication used for the IEP meeting limited s interaction with Ms and did not did not allow for a meaningful discussion about the child or the development of the IEP. The only explanation as to why both Ms. were not in the room with SI for the meeting was that Ms. had to remain in the classroom because the students were in the room for 15 of the 30 minutes that it took to conduct the meeting ( : 27). There was no testimony to explain why the meeting could not have been scheduled when Ms. did not have to be in the classroom with the students. The fact that Ms. was responsible for the class during half of the IEP meeting suggests that the depth of the discussion about the child and the IEP may have been compromised. The Department of Education did not provide any evidence to show that the discussions were unaffected by the presence of the students in the classroom.[9]
I find that the procedural violations described above significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child.
The parents’ additional allegations do not rise to the level of a procedural violations.
The parents allege that there is no evidence in the record that either the psychological evaluation or the psychoeducational evaluation was considered in the development of the IEP, that a psychologist who was qualified to interpret the results of those evaluations should have been present at the meeting and that the school failed to develop assessments to be used as the basis of developing the IEP, such as a reliable and comprehensive psychoeducational evaluation (Parents’ Ex. A at 2; Hearing: 196-197). First, Ms. explicitly testified that both evaluations were considered at the meeting and that the child’s teacher related the information given in those reports ( : 87-88).
Second, the evaluations were conducted in December 2011, before the January 2012 IEP meeting for the prior school year. The parents did not request additional evaluations prior to the December 21, 2012 IEP meeting and without a request for a reevaluation by the child’s parent or teacher the Department of Education is only required to administer new evaluations every three years. 8 NYCRR §200.4(b)(4). Third, a psychologist is not a mandated member for an annual review and since there were no new evaluations the absence of a psychologist did not constitute a procedural violation.
The parents argue that the IEP was defective in part because there was no general education teacher at the meeting (Hearing: 196). However, New York State education law requires the participation of a general education teacher “whenever the student is, or may be participating in the regular education environment.” 8 NYCRR §200.3(2)(c)(2). Here, however, the child was in class and the recommendation was for a 12:1 class. The IEP indicates that no other programs were considered for the child and Ms. testified that neither an ICT class nor a general education class was being considered because his teachers believed it to be inappropriate for the child at this time. Thus, while it might have been helpful to have the insight of a general education teacher, the failure to have one at the meeting does not render the IEP procedurally defective.
B. I also find that the IEP developed at the December 21, 2012 meeting was substantively inadequate and that the BIP did not adequately address the child’s perceived behavioral needs.
The parents assert that the IEP was defective because it did not address he students “unique, individual needs both academic and otherwise.” They also allege that the FBA and the BIP were inappropriate in that they did not address the child’s behavioral needs (Parents’ Ex. A at 2; Hearing: 199).
As related in the Findings of Fact detailed above, both Ms. and Ms. Hatzmichalis testified that the child was on grade level in reading and math and that academics is not his primary issue. Rather, Ms. explained, the child’s primary issue in school is behavioral and/or emotional, which is why the CSE classified him as having an ED despite the fact that the evaluation by a psychiatrist not diagnose the child with any emotional issues but rather reached a diagnosis of , and an expressive language disorder with “problems related to social environment” (DOE Ex. 5 at 3). Ms. described the child at the time the IEP was developed in December 2012 as unfocused, unable to attend to task and engaging in other that precluded consideration of placing him in an ICT class. Ms. and Ms. the assistant principal of the school, testified that while child made progress with his behavior since he was assigned a and other strategies were put in place, neither an ICT class nor mainstreaming was considered appropriate for the 2013-2014 school year because the child still required a paraprofessional and because all of the child’s teachers and providers believed that the current program was appropriate ( ; 17, 29, 84; : 118-119).
Despite Ms. ’s and Ms. ’ significant focus on the child’s behaviors, the IEP does not include any management needs or strategies to address the . Rather, the Management Needs section of the IEP states only that: “A paraprofessional must be available full time in order to support his areas of need[ ] in school” (DOE Ex. 1 at 2). Moreover, there are no behavioral goals on the IEP and no strategies for the paraprofessional to implement. The FBA identifies only one targeted behavior as inappropriate - - interrupting adults and peers -- and neither the BIP nor the IEP identifies any strategies to be implemented to address this behavior. Indeed, the only strategy mentioned at all is on the FBA which identifies the intervention as giving the child a “verbal compliment or thumbs up” every five minutes that he does not interrupt an adult or peer (DOE Ex. 2 at 1). In light of the fact that the testimony by Ms. and Ms. Hatzmichalis focused entirely on the , I find that the IEP and the BIP fails to address the child's special education needs as related by the Department of Education’s witnesses and its psychoeducational evaluation dated December 12, 2011 (DOE Ex. 6).
I also find that the Department of Education failed to meet its burden of establishing that the 12:1 program identified on the IEP was the LRE for the child for the 2013-2014 school year (Parents’ Ex. A at 2; Hearing: 198).
The IDEA mandates that “[t]o the maximum extent appropriate, children with disabilities … are educated with children who are not disabled, an special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity other disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. §1412(a)(5)(A); P. Ex. Rel. Mr. and Mrs. P v. Newington Board of Education, 546 F.3d 111, 120 (2d Cir. 2008). The IDEA has a “strong preference for children with disabilities to be educated ‘to the maximum extent appropriate’ together with their non-disabled peers.” Id. citing Walzak v. Fla. Union Free School District, 142 F.3d 119, 122 (2d Cir. 1998). The presumption in favor of mainstreaming must be weighed, on a case by case basis and “where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate.” Briggs v. Board of Education of Conn., 882 F.2d 688, 692 (2d Cir. 1989; Newington, 546 F. 3d at 119.
The Second Circuit enunciated a two-pronged test to determine whether a particular placement is the LRE for a child: (1) It must be determined whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child and (2) if not, whether the “school has mainstreamed the child to the maximum extent possible. Newington, 546 F.3d at 120 citing Daniel RR v. State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989). In considering the first prong of this analysis a court must consider several factors, including: a) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; b) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and c) the possible negative effects of the inclusion of the child on the education of the other students in the class. Newington, 546 F.3d at 120; Oberti v. Clementon School District, 995 F.2d 1204, 1215, 1217-1218 (3d Cir. 1993).
With respect to the first prong of the test -- whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for the child -- there is no evidence at all that the District made reasonable efforts to accommodate the child in a regular classroom. Despite the parents’ desire to have the child educated within the mainstream environment, the child was in a class for . For the , the CSE was moving the child to a , based on his behavioral improvement since being assigned a 1:1 paraprofessional and the fact that the second grade class was not on his academic level. When asked at the hearing whether an ICT class was considered for the child, Ms. and Ms. both testified that the school personnel “discussed” an ICT class but felt that it would not be appropriate “ ,” the fact that he “still required a paraprofessional” and because the child’s teacher and providers did not believed that the 12:1 program was appropriate. Ms. testified that the child was not a candidate for mainstreaming in either academic or non-academic subjects ( : 84-85; 118-119). Notably, the IEP indicates that no other programs were considered for the child. Neither Ms. nor Ms. explained why the child could not participate in an ICT class with the assistance of the 1:1 paraprofessional, particularly since the only behavioral issue on the FBA is “interrupting adults and peers” and his reading and math functioning was on grade level. Nor was there any testimony or evidence about why, if an ICT or general education class was not appropriate, the child could not be mainstreamed for non-academic subjects accompanied by his paraprofessional.
I note that the IEP indicates that the child was “very engaged and highly motivated when given responsibility such as being a leader in a group, and assisting the [physical] therapist” (DOE Ex. 1 at 2). This comment indicates that the child was capable of positive behavior when outside the environment of his class. The child’s parents were very concerned that the child’s negative behaviors were a reflection of the way other students behaved in his class. Thus, the child clearly might have benefitted from the positive behavior and academic models if he was placed in a general education or ICT class for even part of the day, with his 1:1 paraprofessional. I note that the child is in a class of six students, three of whom are general education students and that even without the assistance that he would have had child is doing well and is well-behaved although he “asks a lot of questions” and may sometimes raise his hand and “interrupt” (Romanos: 145), thereby indicating that with his paraprofessional the child may not have negatively impacted on the other children in the class.
With respect to the second prong of the test, the school has not mainstreamed the child at all for either academic or non-academic activities. In fact, there was no evidence as to whether the child has lunch, recess or any other activities with the general school population.
I find no evidence that the school has made any attempt to accommodate the child in a regular classroom with the assistance of a paraprofessional and any other supplementary aids and services that would help him succeed in a mainstream class. Nor have the school witnesses even provided an explanation as to why it failed to do so, other than referring generally to his behavior, which, the testimony indicated, has shown significant improvement with the and behavior strategies. I note that Ms. cited the necessity for the paraprofessional as a bar to inclusion. Thus, I find that the Department of Education failed to provide sufficient evidence to support a conclusion that the class without any mainstreaming opportunities whatsoever was the LRE for the child for the current school year. In sum, I find that, for the reasons stated above, the Department of Education failed provide the child with a FAPE for the 2013-2014 school year.
* * *
I also find that the evidence at the hearing as recounted in the Findings of Fact detailed above as well as the dated December 8, 2011 brings into question the appropriateness as the child’s current classification (Parents’ Ex. A at 2; Hearing: 197). Therefore, I am ordering evaluations of the child as well as any other assessments that the parents or the CSE feels is necessary in order to determine the child’s proper classification. Following the completion of those evaluations and assessments the CSE is to reconvene for the express purpose of determining the proper classification for the child. That meeting is to include all of the required members and a school psychologist qualified to interpret the results of the evaluations. In making its determination the CSE is to consider the results of those evaluations as well as reports and other information from the child’s current teachers and the child’s parents. II.
Under the second criterion of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which met the child's special education needs. To qualify for reimbursement under the IDEA, parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parent cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as the developing IEPs or employing faculty members that are not state certified. Rather, the parent 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." Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., 459 F.3d at 364. While parent are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S., 231 F.3d at 96.
With respect to this criterion, as detailed above with citations to the record, I find that the testimony by Ms. Romanos clearly demonstrated that Adelphi is “reasonably calculated to enable the child to receive an educational benefit” in the LRE and that it provides the child with “education instruction specifically designed to meet” his unique needs. Rowley, 458 U.S. at 188-189, 207; Frank G., 459 F.3d at 364.
The child is in the . He is in an integrated class with five other students, three of whom are general education students. As part of the child works individually with a licensed special education teacher for organizational skills, writing, spelling time management and flowing directions. He also works with the special education teacher in small groups. In the classroom the child’s teacher modifies the child’s work and uses adapted learning styles and modalities to teach him. In addition to the classroom, the child participates in the mainstream for non-academic activities such as lunch, assembly, art, music, computers, recess and gym ( : 141-144, 147). the child receives the related services of .
As recounted in the Findings of Fact above the child is making progress at Adelphi. He is not displaying any atypical behaviors in school and, with redirection, is able to stay on task and focus for a longer period of time than at the beginning of the school year. The child is responding well to a behavior chart that uses stickers and rewards to limit his “calling out” and helps him to self-monitor such behavior. Socially, the child is interacting with his friends and has improved in areas of recognizing personal space and taking turns (Romanos: 149-151). Finally, Ms opined that is appropriate for the child in that he was “thriv[ing] in the school’s small environment and cohort of students who show positive behavior and are interactive in class.
The evidence shows is the LRE for the child and is meeting the child’s unique educational needs. The child is doing well at the school, has positive role models in class and is making progress while participating with both special and general education students. Thus, I find that the parents have met their burden of demonstrating that Adelphi is an appropriate placement for the child for the current school year. III.
The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.
The Department of Education argued that the equities should be held against the parents because they did not provide the requisite ten day notice before removing the child from (Hearing: 191-192). The parents, in a Memorandum submitted by their attorney Mr. Papakhin, asserted that the parents did provide the requisite notice and that even if they had not, the equities were still in their favor because they had never been provided with the Procedural Safeguards Notice in Spanish (HO Ex. I).
Under the IDEA reimbursement may be denied or reduced if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]); Application of Student with a Disability, Appeal No. 12-
076. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. Id. The SRO has held that parents have substantially complied with the statutory requisite ten day notice when a Due Process Complaint regarding a parents' concerns arising from the IEP includes the ten day notice, indicates the relief sought and is filed at least ten days prior to removing the child from the school. Id.
In his Memorandum and at the impartial hearing Mr. indicated that the Complaint was “filed” on September 13, 2013. Although the Complaint is dated September 13, 2013, there is no evidence of when it was actually “filed” (HO Ex. 1 at 1; Hearing: 192). However, since the Department of Education representative did not contest the representation that the Complaint was, in fact, filed on September 13, 2013 (see Hearing: 192-193, 201-202), for purposes of this discussion I accept that as the date of filing.
The parents stated in the Complaint that they “reserved the right to enroll the child at Adelphi on or after ten school days after the receipt of this notice, at the Department’s expense” (Parents’ Ex. A at 3). The due process complaint stated the reasons that the parents disagreed with the IEP and the placement and indicated the requested relief, “direct tuition funding for the for the 2013-2014 school year” (Parents’ Ex. A at 2-3). The parents did not sign the contract for Adelphi until September 23, 2013, ten days after filing the due process complaint (Parents’ Ex. C). Thus, they substantially complied with the statutory requirements and provided the District with an opportunity to remedy the parent's objections at least ten days prior to the date that the student was enrolled at Adelphi.
In any event, even if the parents had not provided the requisite ten day notice, a denial or reduction of tuition payment would not be appropriate here. As stated above, the Department of Education did not demonstrate that it with the Procedural Safeguards Notice in Spanish (or English,) or with any other written notice that reimbursement could be denied or reduced without adequate prior notice of the private placement as required by the IDEA. In fact, Ms. explicitly testified that she did not provide SI with any documents translated into Spanish ( : 85-85). See 20 U.S.C. §1415(d)(1)(A). Therefore, as Mr. Papakhin’s Memorandum explains, with citations to the applicable sections of the IDEA, reducing or denying the payment of tuition would not be appropriate in this case (HO Ex. I at 4-5). See also Application of the Bd. of Educ., Appeal No. 05-025; Application of a Child with a Disability, Appeal No. 04-026; Application of the Bd. of Educ., Appeal No. 03-091.
In any event, in exercising my discretion as the impartial hearing officer I am not denying or reducing the payment of tuition in this case and I find that the equities favor the parents. The evidence shows that the parents cooperated with the CSE in all respects and, except for the claim regarding the ten day notice, the Department of Education does not contend otherwise.
The parents submitted their 2012 1040 IRS tax form which shows an adjusted gross income of $19,410.00. The tuition for is $40,950.00. Thus, I find that the parents are entitled to have the Department of Education pay the tuition directly. Forest Grove School Dist. v.T.A., 129 S.Ct. 2484, 2496 (2009) citing Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 (1985); D.A. v. New York City Dept. of Education, 769 F. Supp. 2d 403, 427-428 (S.D.N.Y. 2011)
ORDER
In light of the above findings of fact, it is hereby ordered that:
1) Within 30 days of the receipt of this Decision and Order the Department of Education is to pay the child’s tuition at Adelphi Academy in the amount of
$40,950.000;
2) Within 30 days of the receipt of this Decision and Order the Department of Education is to arrange for a for the child and any other assessments that the CSE or the parents believe is necessary in order to determine the appropriate classification and program for the child; and
3) Within 14 days of the completion of the evaluations and assessments the CSE is to reconvene with all required members present, including a school psychologist who is qualified to interpret the results of those evaluations and assessments, in order to determine the appropriate classification for the child.
The CSE team shall convene in the same room as the parent(s) and shall consider the results of those evaluations as well as reports and other information from the child’s current and the child’s parents. Dated: February 27, 2014
RONA FEINBERG, ESQ.
Impartial Hearing Officer RF:gc
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:
Exhibit A Impartial Hearing Request dated
September 13, 2013, 4 pages
Exhibit B Department of Education Due
Process Response dated October 1,
2013, 3 pages
Exhibit C Tuition Contract dated September 23,
2013, 1 page
Exhibit D School Affidavit of Payment dated
November 27, 2013, 1 page
Exhibit E Attendance Record dated November
26, 2013, 1 page
Exhibit F 2013-2014 Class Schedule undated,
1 page
Exhibit G Progress Report dated November
18, 2013, 3 pages
Exhibit H Progress Report dated November
2013, 1 page
Exhibit I Program Description undated, 8
pages
Exhibit J Individualized Education Program
dated January 25, 2011, 23 pages
Exhibit K Social History Update dated
November 15, 2011, 2 pages
Exhibit L Final Notice of Recommendation
dated July 19, 2012, 1 page
Exhibit M 2012 Income Tax 1040A form dated
February 6, 2013, 2 pages
Department of Education:
Exhibit 1 Individualized Education Program
dated December 21, 2012, 18 pages
Exhibit 2 Functional Behavior Assessment and
Behavior Intervention Plan dated
January 4, 2013, 2 pages
Exhibit 3 Final Notice of Recommendation
dated January 4, 2013, 1 page
Exhibit 4 Physical Therapy Annual Review
Plan dated December 19, 202, 3
pages
Exhibit 5 dated December 8, 2011, 3 pages
Exhibit 6 dated December 12, 2011, 5 pages
Hearing Officer
Exhibit I Parents’ Memorandum of Law dated
January 15, 2014, 7 pages
Footnotes
[1] ). Ms. has a Master’s Degree , has worked for the Department of Education for 34 years and has been at for 25 years. Ms. participates in IEP meetings as the District Representative ( : 11, 23-24).
[3] Ms. is has a license in Common Branches and Bilingual Education as well Supervision and Administration and as a School District Leader ( : 107-108).
[4] The paraprofessional and the special education liaison both speak Spanish and translated for the child’s mother any time she came to school for a meeting ( : 123-124).
[6] Ms. has certifications in general education, special education grades one through six and school building leadership (Romanos: 137-138).
[7] The child’s individual behavior chart includes staying in his seat for a certain amount of time, not calling out, not interrupting and respecting others’ space ( : 157).
[9] In his closing statement Mr. argued that the absence of a parent member was a procedural violation. However, that issue was not raised in the Complaint and was not raised at the hearing. Rather, it was mentioned only in Mr. s closing argument (Hearing: 194). Therefore, it is not an issue to be addressed in this Decision and Order.