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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: January 2, 2014
March 6, 2014
Actual Record Closed Date: May 1, 2014
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 2, 2014
Esq. Attorney District Representative Department of Education Mother Father — Parents
Neuropsychologist — Parents
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2014
District Representative Department of Education
Mother
Father
Co-Director, Steven — Parents
(via telephone)
Special Education Teacher, — Parents
(via telephone) School
INTRODUCTION
On January 2, 10014 and March 6, 2014 I held 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 hearing commenced at 10:00 a.m. and 9:34 a.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
old and attends the ). In a letter dated September 26 2013, s parents, by their advocate, , filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education did not a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year in that the Individualized Education Program (“IEP”) dated June 20, 2013 was substantially and procedurally flawed and that the placement recommendation was not appropriate for . The parents alleged is appropriate and that the equities favor them. They requested reimbursement for the tuition and for special education/suitable transportation from to (Parents’ Ex. A).[1] The Department of Education did not file a response.
I was appointed as the Impartial Hearing Officer on September 26, 2013. The original compliance date was December 10, 2014. On November 7, 2013, at the request of the parents for the availability of witnesses and without objection by the District, the compliance date was extended to January 9, 2014, a control date was scheduled for January 15, 2013 and a hearing date was scheduled for January 2, 2014. At the conclusion of the hearing on that date at the request of the parents for the availability of witnesses and without objection by the District the compliance date was extended to February 8, 2014 (subsequently adjusted to February 10th), a control date was scheduled for January 15, 2014 and a hearing date was scheduled for March 6, 2014. On February 10, 2014 at the request of the parents for the availability of witnesses and without objection by the District the compliance date was extended to March 12, 2014. At the conclusion of the hearing on March 6, 2014 at the request of both parties for the receipt of the transcript and the submission of closing briefs, the compliance date was extended to April 11, 2014. On April 1, 2014 at the request of the parents’ attorney for an extension of the compliance date for additional time to file her closing statement and for this hearing officer to consider the closing briefs and issue a Decision and Order and without objection by the District, the compliance date was extended to May 11, 2014 (subsequently adjusted to May 12th).
The extensions 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. Specifically, (a) the child was , the independent placement, and thus there was no negative impact on the child’s educational interest or well-being as a result of the delay; (b) in accordance with due process the parents were entitled to the opportunity to secure witnesses to appear at the hearing in support of their position and the parties were entitled to issue closing statements based on the transcript and have this hearing officer review the transcript and consider the evidence and the closing briefs prior to the issuance of a Decision and Order; (c) there is no pendency in this case and there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above any prior delays due to the unavailability of witnesses did not require the denial of a subsequent extension request.
THE PARENTS’ POSITION
, Esq., represented the parents at the impartial hearing. Ms. alleged that the Department of Education did not with a FAPE for the 2013-2014 school year, that is appropriate and that the equities support the parents.
THE DEPARTMENT OF EDUCATION’S POSITION
., represented the Department of Education. Ms. asserted that the IEP was reasonably calculated to provide with an educational benefit and the program recommendation would have provided with a FAPE (Hearing: 9-10). Ms. also asserted that the equities do not favor the parents because they had “no true intention to cooperate” with the CSE (DOE Closing Statement at 4).
ISSUES TO BE RESOLVED
1)Whether the IEP was procedurally defective; 2) Whether the IEP was substantively defective; 3) Whether the placement recommendation by the Department of Education was appropriate to meet s unique special education needs; 4) Whether is appropriate to meet unique special education needs; 5) Whether the equities of the case favor the parents.
FINDINGS OF FACT
The Department of Education’s Case
is a certified New York State psychologist.[2] She currently works at the Committee on Special Education, Region 10, and is assigned to testing, evaluations and behavior plans for charter schools. She also works with the schools as a special education liaison to make sure that the students are receiving the services recommended for them on their IEPs ( : 11-12). During her first two years at the CSE Ms. conducted CSE reviews for students attending non-public schools (Alvarez: 12-13).
Ms. attended the IEP meeting held for NG on June 20, 2013 as the District Representative and the school psychologist. The parents attended the meeting as did a Department of Education special education teacher, , a representative for the parents from their advocate office, , and a parent member. A teacher from , participated by telephone. No general education teacher attended the meeting ( 13-14, 32, 46, DOE Ex.
2 Ms. Alvarez has an undergraduate degree in psychology, a Master’s Degree in therapeutic intervention and a professional degree in school psychology (Alvarez: 11-12).
Citations to pages 32-47 refer to Ms. Siegel’s cross-examination of Ms. Alvarez. observation ( 48). Ms. ( 32). There was no general education teacher at the meeting (Alvarez: 32).4
As determined in the neuropsychological evaluation ’s scores on the WISC-IV were in the for verbal comprehension, the average range for perceptual reasoning and working memory, and the processing speed ( : 15; DOE Ex. 2 at 1; Ex. 3 at 13). Her scores in academics on the Woodcock-Johnson III Tests of Achievement ranged from the average to superior. However, in the Gray Reading Test scored on a level in reading accuracy and fluency grade level in comprehension, in language, reading and writing ( 16-17; DOE Ex. 2 at 1-2, Ex. 3 at 14-15).
The speech and language evaluation indicated that had some age appropriate articulation skills but a moderate impairment in her receptive language skills, thus making it difficult for her to follow multi-step directions, recall a single word, use details and make inferences. The evaluation also in her in that she had higher level concepts and ideas, formulating sentences during structured activities and formulating an organized narrative. The evaluation noted had a to express her ideas in writing and that she presented with a mixed It therapy to address these : 17-18; DOE Ex. 6 at 5).
Ms. teacher who participated in the IEP meeting, told the IEP team that some with additional support. The teacher noted that writing is one and that she often had , expressing herself through words and difficulty writing sentences. She also with grammar and it was easier for to use a computer which would help to check her spelling and grammar ( 18-19; DOE Ex. 2 at 2).
Ms. and Progress Report advised the CSE team appropriately with her peers and is respectful. At the end of the 2012-2013 school year in that she , engaged in and thus . She also had some and she . At that time the school psychologist was monitoring her behavior. parents expressed concerns about this behavior at the IEP meeting (Alvarez: 19-20; DOE Ex. 2 at 4). The physical exam form also noted that had difficulties maintaining focus, and changes in her behavior ( : 21).
Citations to pages 32-47 refer to Ms. ’s cross-examination of Ms.
The Management Needs section of the IEP was based on information from ’s teacher about strategies she was using with NG that were helping her in class ( 21-22; DOE Ex. 2 at 4). Ms. recalled that in this case the goals on the IEP were neither discussed nor generated at the IEP meeting. Rather, the goals were generated after the meeting and were based on information provided at the meeting, primarily from the teacher, about NG’s areas of deficit and what : 24, 34-35, 48-53). Specifically, the reading and writing goals were based on the and were to address deficits in reading fluency, reading comprehension skills and written language ( : 25-26). The math goals on the IEP reflect the teacher’s references to in that area and there are goals on taking notes because the teacher stated at the meeting The IEP also includes goals based on the Management Needs section of the IEP ( 26). The were based on recommendations by the therapist who evaluated prior to the IEP meeting, on information from the team’s understanding profiles and “probably” information from Report ( 24-25). The counseling goals were based on discussions with the teacher and the parents at the IEP meeting ( 25).
The neuropsychological evaluation indicated should be placed in a special education class with no more than 12 students in each of her classes and both ’s parents and her teacher stated during the meeting to require a small class in order to learn ( 4446; DOE Ex. 3 at 10). Although the IEP team considered that recommendation, it ultimately recommended a “flexible” program that included an ICT classes for math, social studies and science where would benefit from having two teachers and being exposed to a mainstream setting; those classes may have up to 35 students depending on the particular school. The team also recommended a class for ELA to address her significant oral and written difficulties and her deficits in receptive and . In addition, the team recommended the related services of individual therapy twice a week and in the ELA special education classroom and once a week in a separate location and individual counseling once a week in a separate location ( : 27-28, 43-44; DOE Ex. 2 at 14-15).
In making the recommendations on the IEP the team referred to the recommendations on the evaluation but also considered that as indicated in the evaluation was “ ranging from . The team considered that the grouping of the students in the placement would be functioning at the same level as n ELA ( : 37-40).[5] There was no discussion at the meeting about the placement options that were available for ( 35). Nor was there anyone at the meeting who would have been responsible for implementing the IEP ( : 36-37). s parents expressed concern about the placement in an ICT class but agreed to look at and consider any and all recommended placements (Alvarez: 45-47). The IEP team did not consider a non-public placement because, based on the information available, the team believed would benefit from being in a public school since the teacher reports indicated that in areas other than ELA had “some really nice skills.” The reports also indicated was “socially involved” and Ms felt that a nonpublic school would limit ’s exposure to mainstream peers and a lot of mainstream curriculum ( : 46, 54).
Based on the information in the neuropsychological and evaluations the team determined that a “ ” classification was the most appropriate : 29). Everyone who participated in the IEP meeting had the opportunity to speak and give their input. Ms. believed that the classification and all of the sections of the IEP are appropriate for NG ( : 30). The Parents’ Case mother. The parents first noticed related to learning was in kindergarten (LS: 62). They took , Ph.D., a psychologist with a doctorate in : 80-81; Parents’ Ex. A).[6] Dr. administered evaluation in the summer of 2008 when she was six years-old. At that time ( 63; 83). attended a mainstream general education program at the school with special education teacher support in math and English. She remained in that setting from first through fourth grade ( : 63-64; : 83). For the the parents . The Department of Education paid the tuition for the (LS: 64-65).
Dr. valuated again in July 2012 when (LS: 65, 88; Brozgold: 84). While NG showed a “forte” in overall reasoning abilities on the WISC, she showed “persistent difficulties with phonological processing, naming and word finding,” a “common double deficit” ( d: 84-86 also fluctuations in verbal memory underscored her need for a multisensory approach showed some strengths in measures of perceptual reasoning including an “excellent processing” and : 86-87
Academically was “relatively strong” in her decoding of single familiar words but when she had to rely on her phonetic grasp for nonsense words, a “classic finding” of students . Her fluency was “quite weak” even when reading simple sentences and by the time she came to a sixth grade reading passage she “became quite disfluent” ( 88). With respect to reading comprehension had some difficulty understanding the wording of the questions and needed them to be reworded. While she was better with silent reading NG still had some difficulty with inferential comprehension questions, for example, questions about the main idea and the author’s intent. In writing, was able to generate an outline and a “system” learned that was helpful to her. She needed additional time to read what she had written out loud and to make corrections. told Dr. that at school she is able to go to a quiet room next to her classroom and read out loud, which helped her correct her punctuation and sentence structure ( : 89-90). In math showed a “superior strength” in math concepts but she had gaps when it came to calculations in with fractions and long division. Dr. concluded that while ’s conceptual grasp of math may be good, she needs a lot of repetition, review and multisensory teaching to fully encode and learn math procedures. also showed relative weakness on a math test that involved mental arithmetic and math : 90). Dr. determined extensive support to improve her inferential reading and expand on her writing ( : 90-91).
showed indications of increased anxiety that seemed to be related to her mother’s illness and the medical problems of one of her grandparents. “tries very hard” to present herself as coping well and she tends not to ask for help; she and would likely “shut down” instead of raising her hand for help. For this reason Dr. concluded that NG is at risk for not being noticed and she is at risk for : 93-94).
Dr. determined that s language weaknesses required her to be in a small class that uses a structured multisensory language approach so that she would be able to follow oral directions consistently and process material that is being presented orally in class lessons. also requires specific support in breaking down information into manageable chunks and repetition and practice to consistently facilitate what she is DOE Ex. 3 at 10-11).
Dr. concluded that required intensive support in a small class of no more than twelve children within a small, special education school that provides a structured multisensory language approach. Dr. explained that a small class was necessary both to provide with individual support and to minimize auditory distractions and background noise that would be present in a mainstream classroom. She requires individualized academic support where teachers break things down for her and review oral instructions to make sure she knows what she needs to do. needs to be in a small, safe, familiar class so that she will be comfortable asking for help and participating more. The report recommended several accommodations including time and a half for testing (LS: 65-66; : 94-95; DOE Ex. 3 at 10-12).
In a letter dated February 14, 2013 advised the CSE 10 Chairperson that, among other things, there had been no IEP meeting scheduled for and that she would like to have a meeting scheduled “as soon as possible” (Parents’ Ex. B).[7] An IEP meeting was held on June 25, 2013. The parents attended the meeting at was classified as having a learning disability. provided documents for the meeting, answered questions at the meeting and expressed her opinions and comments about the CSE’s recommendations ( 67). In particular, xpressed her concern about the size of the classroom because was at that time in a class of 11 students and was being provided with one on one instruction as well as class instruction, a mix that has been successful for her. LS believed that the distractions in a classroom with over 25 children would be “overwhelming” for , who constantly needs to be refocused. was also concerned about the class size because needs to have information broken down into “small chunks” and she gets overwhelmed with multi-step instructions. needs teacher assistance to get her files and homework in order and was concerned that would not get that kind of attention in a large class. was also concerned about whether would continue to be taught in a multisensory manner, which has been successful for : 68-69).
Dr. has reviewed “thousands” of IEPs over the past 25 years. She did not believe that the June 2013 IEP was appropriate for . Dr. explained that the Present Levels of Performance section on the first page of the IEP should give the teachers an overall sense of ’s academic developmental and functioning needs. As written, that section of IEP contains evaluation results in the format of test scores from the neuropsychological evaluation. Dr. opined that it would be confusing and difficult for a teacher to understand how those scores would impact functional needs and that while there is some description of impact of the scores on ’s functioning, there should be more elaboration in terms of how the scores would impact her ( 96-97). She opined that the Academic Achievement section of the IEP is an effective summary of ’s abilities ( : 97). Dr. agreed that the goals on page 6 of the IEP are appropriate for However, she was “concerned” about how the schedule of measuring progress each quarter would impact on ’s progress and ensure that she was keeping up with the work on a day-to-day basis so that her gaps in her understanding and information would not increase over the three month period and cause her to fall further and further behind as well as causing her considerable anxiety and distress ( : 100-102).
Dr. “very familiar” with a Department of Education ICT class and has been in about a dozen such classes ( 102). She did not believe that the program recommendation on the IEP was appropriate , stating needs a small class for all of her academic subjects, not just ELA. Dr. explained that in every subject needs the information to be presented with multisensory modalities and repetition. She opined would “tend to get in an ICT class and would not ask for help and that the large size of the class would be (Brozgold: 102-103).
During the second week of August 2013 the parents received a placement recommendation for ”). She called the school and spoke to a parent coordinator who told her to call back after Labor Day. called the school again on September 3rdh but there was no answer. When she called on September 4th she spoke to the parent coordinator and explained that she would like to visit the school because it was recommended as a placement for visited the school on September 13th (LS: 70-72; Parents’ Ex. G). The school did not have a copy IEP; the only information the school had about had told the parent coordinator on the phone (LS; 72).
did believe that Global Studies was appropriate The building houses three schools and about 1,000 students. Global Studies itself has 300 students. A LS visited the school on September 13, 2013 and met with a special education teacher and a parent coordinator. The parents asked to see the ELA class that was recommended on the IEP but they were not able to visit it. Instead, they visited or social studies class. The class had a teacher and two paraprofessionals at the back of the room who were assigned to individual students, one who had disciplinary issues and the other who was functioning at a level not appropriate for NG. The classroom had a chalkboard but no SMART board or computers (LS: 73-74, 78). also saw an ICT class that was “run” by a general education teacher and had 25 or 26 students. At that time the general education teacher was teaching history and the special education teacher was not participating in the lesson ( 75-76).
The parents asked whether the curriculum in the ELA class included multisensory delivery or scaffolding and they were told that the delivery in that class was the same as in the general education classes ( 76). The parents were also told that the only seventh grade ELA class was taught at the same time that math was taught in the only seventh grade ICT class and that the scheduling could not be changed ( : 77). The school did not have art, music, dance or theater classes : 79). The school could not confirm that there was a place available for : 75).
asked about the information on the Progress Report that is issued by the New York City Department of Education ( : 78; Parents’ Ex. F).[8] The Report states that the school has a teacher turnover rate of more than one third and a graduation rate of 68%. There are references to disciplinary issues at the school. The special education teacher and the parent coordinator who were confirmed the high teacher turnover rate and the disciplinary problems (LS: 78-79).
( 105). is the co-director of the middle school; he has a Master’s Degree in learning disabilities ( 119). is an ungraded school for students who have diagnosed language based learning disabilities. Each class has a maximum of eleven students with a head teacher who has a Master’s Degree in special education and an assistant teacher who either has a Master’s Degree in special education or learning disabilities or is pursuing one of those degrees ( : 120; Dorbad: 160).[9] The school has a reading specialist, speech and language therapists, occupational therapists and math specialists who both push into the classroom and pull out students to provide individual and small group support to students who need it ( : 120-121).
Mr. has for several years. He discussed her progress and how she fits into the classes she is currently attending ( : 123). During the current school year Mr. sees in one of her classes almost every day. , a certified and licensed speech and language pathologist, works with on a push-in basis three times a week and on a pull-out basis once a week : 124, 140-141). 10 Mr. has reviewed s 2013-2014 IEP and her neuropsychological evaluation ( : 124).
s homeroom teacher is , who also teaches math Ms. has a Master’s Degree in special education (Beich: 125; Dorbad: 146-147). The assistant teacher in the class is , who has almost completed her Master’s Degree in special education. Homeroom encompasses writing, current events, social justice and study skills. ’s literature teacher is who has a Master’s Degree in special education, her history teacher is who has a Master’s Degree in special education, and her science teacher is , who has a Master’s Degree in science education and his pursuing her doctorate in that field ( : 125-126; : 147). There is an assistant teacher in s science and math classes. The number of students in classes varies from eight to eleven ( : 126-127; 147-148). is placed in her classes with students who are similar to her in intellectual and social/emotional functioning. The classes are designed so that there are stronger and weaker students and ones that are leaders, in order to create a good environment for learning ( 153-154).
Ms. works with three and a half to four hours a day. In math class Ms. works individually with about ten times during the period, including when is sharing an answer and Ms. is trying to help her formulate her thoughts and elicit an answer. During independent work calls on Ms. to make sure she is following the correct steps or to reassure her that she is on the “right track.” about her performance and always wants to get the correct answer; if she does not, Ms. reassures and points out the ways in has succeeded. Without that reassurance and individual attention and not self-advocate or participate ( : 148-149, 153). Ms. also “checks in” during class to make sure that she understands what she needs to be doing, that she has all of the materials that she needs to complete the assignment and to see if has any questions. In math class Ms. checks in to make sure she is not “rushing through” the problems and that she is taking time to check her work so that she does not make the same mistake repeatedly ( 152-153). In other classes there are more adults in the room to help spends a little less one-to-one time with her ( : 148).
Organization is a key difficulty for and she needs constant “check-ins” to make sure she has everything she needs to bring to class as well as bring home. Long term assignments have to be broken into smaller chunks in order for o manage them. Directions need to be modeled and repeated for She also had difficulties with organization of language and she requires “starters” and prompts to elicit an answer and express her complete thought. In order to stay focused for a whole period NG must be reminded to do so and be called on often. needs a lot of assistance in expanding her answers, organizing her thoughts and adding details in a paragraph or multi-paragraph essay so that what she wants to convey is clear ( : 150-151).
is improving her reading fluency but it is still difficult for her to infer and work on higher level reading questions. follows and Orton-Gillingham approach to work with . The school uses a lot of fluency activities and explicit strategies to support NG’s reading comprehension, such as prediction and inference ( 151). For written language the school uses the Writing Skills curriculum which as a strong focus on using outlines in the prewriting stage. The program before writing them down ( : 151-152).
The teaching encompasses scaffolding. For example, Ms. teacher provides lot of support and modeling for and so that can work more independently ( 152 does not on a weekly basis but there is a school psychologist on staff and the psychologist “does a unit” and a Through those classes is learning strategies to deal with anxiety such as and her teachers remind of the strategies in school ( :141; 155-156).
Ms. has made progress this school year. She now seeks out her teachers before writing an assignment because she understands how much they help her. Her written language is improving in that that she has been taught and encouraged to use. is also reading through her papers more often than she did before and more often asking a teacher to whether it is well organized and makes sense. She is more consistent in writing down her assignments and taking ownership over her materials. At the beginning of the school year rushed through the math problems and not show all of the steps. Now, she is more consistent with her answers and she takes her time and shows her work ( 154-155).
Mr. opined that needs. The small classrooms focus on student advocacy and help ( : 127, 141). The scaffolding, support and classes allow her to be comfortable as she will not be asked to do anything she is not capable of doing. The school also provides with the opportunity of being in a class that is intellectually challenging without “sending her over the edge” ( : 128).
Ms. believed that because of the small classes, teacher support, and from being with other students who are similar to her in academic and social/emotional functioning. also benefits multisensory approach to teaching and she “thrives” with the individualized curriculum and support that she receives at the school : 155-156). With respect to the goals on the IEP Ms. opined that it was necessary to check in with NG daily, not quarterly because she would and if not checked every day ( 159-160).
Dr. s familiar and believes that the school is appropriate The classes are small, the students are of at least average intellectual ability and they have no significant attentional or behavior problems. uses a structured multisensory approach in all subjects and the environment is one in which would feel comfortable ( : 103-104).[11]
. is developing the academic skills being and she actively participates in class : 105-106). has many and loves the social aspect of the school. believed finds the program very well suited to the way that she learns. has some and ” and “ : 106). LS believed that is a nurturing and safe environment The teachers on task and provide redirection when she needs it. As a has made great strides and improvement in her writing since the beginning of the school year : 107, 110). believed that the teachers at re addressing special education needs though a multisensory delivery with a lot of visual cues. The classroom is free of distractions and are similarly engaged ( 108). provides feedback to the parents as often as they wish to receive it will respond to any questions and contact the parents if they feel that . There were formal reviews with the teacher in October and in January and there will be one at the end of the school year (LS: 109110).12
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 to 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 NG'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 NG to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.
The legal standard applicable to a request for reimbursement 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 begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record.
I.
The Department of Education failed to provide NG with a FAPE for the 2013-2014 School Year
To meet its burden, the Department 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.
A. Several procedural violations deprived NG of a FAPE.
At the outset I find that the parents did not have the opportunity to meaningfully participate in the IEP meeting (DOE Ex. 1 at 3; IHO Ex. III at 19-20). Ms. the school psychologist who attended the IEP meeting, testified that in this case the goals on the IEP were neither discussed nor generated at the IEP meeting. Rather, she explained, the goals were generated after the meeting and were based on information provided at the meeting, primarily from the teacher, about ’s areas of deficit and what had to work on ( 24, 3435, 48-53). I find that failure of the CSE to develop the goals with the parents and the child’s teacher present was, by itself, a procedural violation that significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to . Without that input s parents and her teacher did not have the opportunity to alert the CSE team about the appropriateness or specificity of the goals or the schedule of measuring her progress. See IHO Ex. III at 19-20.
I also find that the Department of Education’s failure to include a general education teacher at the IEP meeting was a substantial procedural violation (DOE Ex. 1 at 4; IHO Ex. III at 21). Under prevailing federal and state law the CSE must include a general education teacher whenever the student is, or may be, participating in a general education environment. 20 U.S.C. §1414(d)(1)(B)(ii); 8 N.Y.C. R. R. §200.3(2)(c)(2). Here, the CSE recommended an ICT class for LG for every subject except ELA. Thus, the IEP team was required by the applicable law to include a general education teacher at the meeting. In this case the absence of the general education teacher was particularly significant.
At the time of the IEP meeting was attending self-contained special education classes of no more than eleven students. The recommendation of an ICT class was opposed by s parents and her teacher and it was antithetical to the specific recommendations on Dr. ’s evaluation, which specifically recommended a small class of no more than twelve students within a small, special education school that provides a structured multisensory language approach. Dr. explained that a small class was necessary both to provide with individual support and to minimize auditory distractions and background noise that would be present in a mainstream classroom (LS: 65-66; : DOE Ex. 3 at 10-11). A general education teacher who reviewed the documents provided for the IEP meeting and heard the concerns expressed by the people who actually knew , would have provided valuable insight as to whether an ICT class would have been able to meet s specific special education needs. See IHO Ex. III at 21. Thus, this omission, too, by itself, constituted a significant statutory and procedural violation that impeded ’s right to a FAPE.
In addition, since the program recommendation on the IEP was a drastic departure from s current program in which she was in a small class in a small special education school with no more than eleven students in her class, I find that the Department of Education’s failure to conduct and consider a classroom observation constituted a procedural violation as well ( 48; DOE Ex. 1 at 3; IHO Ex. III at 20-21). Without a recent classroom observation the CSE team could not accurately consider how functioned in class, how often and how much one-to-one support she required and what methods were necessary to minimize distractions and keep focused on her work, issues germane to a determination of whether an ICT class of at least 25 students would have been able to meet her needs.[13]
B. The IEP was substantively inadequate and thus of a FAPE. The procedural violations in the development of the IEP resulted in substantive inadequacy of the IEP as well. Without the input and teacher in the development of the IEP goals there is no evidence to support a finding that the goals were sufficient to meet NG”s unique special education needs.
The parents alleged in their Closing Brief that the IEP was substantively inadequate because it “failed to sufficiently identify levels of performance (IHO Ex. III at 22). In support of that claim they point to Dr. testimony that the Present Levels of Performance section of the IEP would leave the teacher or provider confused. Specifically, Dr. pointed out that that section of the IEP presented the results of the neuropsychological evaluation in the form of test scores which would make it difficult for a teacher or provider to understand how those scores would impact functional needs. While the IEP had some explanation of the scores at the end of that that section, Dr. opined that that there should have been more “elaboration” ( : 96-97; DOE Ex. 2 at 1-2; IHO Ex. III at 22-23).
The Present Levels of Performance section of the IEP does include a listing of s test scores as per the neuropsychological evaluation and a teacher or provider who is not also a psychologist would be unable to interpret how these scores impacted on s functioning. However, I find that the information at the end of the section sufficiently identifies NG’s weaknesses in language that would alert a teacher or provider of the impact of those scores performance at the time the evaluation was conducted, and thus that the Present Levels of Performance Section of the IEP did render the IEP substantively defective.
C. Neither the program recommended in the IEP nor the placement on the Final Notice of Recommendation (FNR) was appropriate to meet ’s unique special education needs.
As explained above, Dr. s teacher and ’s parents all believed a small class in a small school that uses a multisensory approach to learning. The evidence showed that unique educational needs require specific support in breaking down information into manageable chunks as well as repetition and practice to consistently facilitate what she is learning (LS: 65-66; Brozgold:94-95;DOE Ex. 3 at 10-11). The evidence also made clear that and needs a quiet environment with a explained that a small class was necessary both to provide with individual support and to minimize auditory distractions and background noise that would be present in a mainstream classroom. It was clear from the evidence and testimony that knows what she needs to do. The evidence and testimony showed that , does without constant attention and redirection. (LS: 65-66; Brozgold: 94-95; DOE Ex. 3 at 10-12).
Nevertheless, the CSE members of the IEP team, only none of whom was a school psychologist and none of whom had ever took it upon themselves to interpret the results of the testing and Dr findings in the neuropsychological evaluation and reach an entirely different conclusion from Dr. about what would be an appropriate program for Thus, instead of following the recommendations of Dr. an experienced neuropsychologist who has known NG since 2010, and the input by s teacher and parents, who knew well, the CSE recommended an ICT class for all of ’s subjects except for ELA, which was to be provided in a class. The evidence and testimony at the hearing, which is presented in detail throughout this Decision and Order, left no doubt that the ICT program recommended by the CSE would not have been able to meet s unique academic and .
For the same reasons, the placement recommendation at Global Studies was inappropriate for . , who visited the school, explained that it is housed with three other schools in a building with 1,000 students. Global Studies itself had 300 students and the ICT class had 25 or 26 students.
In addition, visited the school on September 13, 2013, after the 2013-2014 school year began and she observed the only seventh grade ICT class the only seventh grade class. She also testified that she was advised that the ICT math class met at the same time as the ELA class and that the schedule could not be changed. Moreover, testified that the school could not confirm that it had a seat for at the beginning of the school year (LS: 75-77).
The Department of Education did not provide any witnesses to testify about whether Global Studies had a place at the beginning of the 2013-2014 school year or to refute the scheduling information related . While the Department of Education maintains in its Closing Statement that any such testimony would be retrospective and thus inappropriate (IHO Ex. II at 3-4), that contention is incorrect with respect to this particular issue.
Testimony regarding a proposed placement is retrospective if it offers information that was not reasonably known to the parties when they made their decision about the appropriateness of such a placement and was offered to “overcome deficiencies in the IEP.” R.E. 695 F.3d at 185; D.C. v. New York City Dept. of Educ., 950 F. Supp.2d 494, 512-513 (S.D.N.Y. 2013). Here the relevant testimony would not have been offered to “overcome deficiencies in the IEP” or to provide information not available to the parents at the time they visited the school, which was after the 2013-2014 school year had already begun. Rather, it would simply have either affirmed or about the information provided to her by the school regarding whether there was a place at the beginning of the school year and whether a scheduling conflict precluded the implementation of the IEP. In the absence of such testimony I and find had only class and one seventh grade class, and that because of the scheduling conflict it could not have with the program recommended on the IEP. Moreover, I find that the Department of Education failed to demonstrate that Global Studies had a place at the beginning of the 2013-2014 school year.
***
For the reasons explained above I find that the Department of Education failed to meet its burden of demonstrating that it with a FAPE for the 2013-2014 school year.
II.
Under the second criterion of the legal standard, 's parents bear the burden of proof with regard to the appropriateness of the services that the parent obtained for 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 parents must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that the educational program is one which . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parents 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 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." 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 parents 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.
The testimony and the evidence showed is an appropriate placement the current school year. Indeed, the Department of Education does not argue otherwise in its Closing Statement (See IHO Ex. II at 4).
As related in detail in the Findings of Fact above, the testimony , Ms. Dorbad, demonstrated that the program is reasonably calculated to provide NG with educational benefits and that it is doing so.
is in small classes of no more than eleven students. The teachers provide needs and her anxiety. The school has a multisensory program that need to be taught information in a variety of ways and the program closely resembles the recommendations in Dr. s evaluation. receives a lot of individual teacher support and she is grouped with other students who are similar to her in academic and social/emotional functioning. The system of scaffolding used in the school enables the teacher to provide with modeling and help at the outset and then gradually withdraw the assistance so that can work on various tasks independently.
Ms. explained the progress has made during this school year. Specifically, now asks for help with assignments when she needs it. Academically, her written expression in improving and she is increasingly aware of how to review her papers and ask the opinions of her teachers in order to determine whether her work is well organized and makes sense. In math, she is taking her time and showing her work, something she did not do at the beginning of the school year. She has also improved in her ability to stay organized.
In sum, I find that the parents met their burden of demonstrating “reasonably calculated to enable to receive an educational benefit.” Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. Moreover, I find the LRE this time.
III.
The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.
A major consideration in determining whether the equities favor the parents is whether the parents cooperated with the Department of Education throughout the process to “ensure that the child receives a FAPE.” D.C. v. New York City Dept. of Educ., 950
F. Supp.2d at 515 citing Bettinger v. N.Y.C. Bd. of Educ., No. 06 Civ. 6889, 2007 WL 4208560 at *6 (S.D.N.Y. Nov. 20, 2007).
I conclude that the equities support the parents. The evidence establishes that the parents cooperated with the Department of Education throughout the CSE process for the 2013-2014 school year.
In a letter dated February 14, 2012 LS wrote to the CSE 10 Chairperson noting that an IEP meeting for the 2013-2014 school year had not yet been scheduled. informed the Chairperson that she was going to pay the deposit to ensure that ad a place for that year in the event that the Department of Education did not provide an appropriate placement in a timely manner, and that in that circumstance, she would seek tuition reimbursement. She also asked that an IEP meeting be scheduled as soon as possible and that a member of the CSE placement office attend the meeting (Parents’ Ex. B).
An IEP meeting was not held until June 25, 2013. Both parents attended the IEP meeting and they provided the CSE with the Dr. s and a physical examination report. The parents received the FNR in mid-August and called the recommended placement, , and was told to call again after In a letter to the CSE 10 Chairperson dated August 15, 2013, conveyed that information and stated that since she could not view the school until after the beginning of the school year the parents had no option but to unilaterally place NG at Gaynor and that she would seek tuition reimbursement. She also explained that she did not believe the program recommendation on the IEP was appropriate for because of the size of an ICT class but that she would be more than willing to consider an appropriate placement offer by the CSE (Parents’ Ex. D).
LS called Global Studies after Labor Day on September 3rd and September 4th and was given an appointment to view the school on September 13, 2013. In a third letter to the CSE 10 Chairperson, dated September 23, 2013, recounted her visit to the school and detailed why the parents did not believe it was appropriate for (Parents’ Ex. G).
In light of the parents’ cooperation throughout the CSE/IEP process for the 20132014 school year I find that the equities in the case support the parents.
In its Closing Statement the Department of Education asserts that the equities do not favor the parents because they never intended to send NG to public school and “only feigned cooperation” (IHO Ex. II at 4-5). In making that assertion the Department of Education points out that the parents signed an enrollment contract at Gaynor prior to February 13, 2013, before the CSE meeting (IHO Ex. II at 4). This argument is unavailing.
The enrollment contact with Gaynor did not demonstrate that the parents failed to cooperate with the CSE. As indicated above, in her February 14, 2013 letter explained was requiring the parents to sign the contract in order to ensure that had a placement for the 2013-2014 school year in the event that the Department of Education did not offer an appropriate program or placement. also asked that an IEP meeting be scheduled as soon as possible, thus encouraging the process to begin, not thwarting it (Parents’ Ex. B).
Moreover, contract specifies that if the Department of Education provided an appropriate non-public school placement that was accepted by the parents prior to September 5, 2013, the school would have relieved the parents from paying the remainder of the tuition due and reimbursed the parents for all payments made by that date (Parents’ Ex. J at 2). See D.C. v. New York City Dept. of Educ., 950 F. Supp.2d at 515, supra.
The fact that LS did not get to visit the proposed placement until after the school year began was through no fault of her own. Despite her request in February 2013 to have an IEP meeting “as soon as possible” (Parents’ Ex. B), the CSE did not arrange for a meeting until June 25, 2013, at the end of the school year. The FNR is dated August 2, 2013 at which time the school was closed until after Labor Day.
In light of the above I find that the equities of the case support the parents.
* * *
Based on the above findings of fact and conclusions of law, I find that the Department of Education is required to reimburse the parents in the amount of
$52,100.00 for for the 2013-2014 school year (Parents’ Ex. J at 1).
ORDER
In light of the above findings of fact, it is hereby ordered that: a) Within 30 days of receiving a copy of the tuition contract for the 2013- 2014 school year , proof of payment by the parents and proof attendance, the District is reimburse the parents for the amount of tuition not to exceed $52,100.00. If the parents are still making periodic payments to the school the Department of Education is to reimburse the parents within 30 days of proof of each payment.
Dated: May 12, 2014 Rona Feinberg mv
RONA FEINBERG, ESQ.
Impartial Hearing Officer
RF;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
Department of Education:
Exhibit 1 Impartial Hearing Request dated
September 26, 2013, 7 pages
Exhibit 2 Individualized Education Plan dated
June 20, 2013, 22 pages
Exhibit 3 Evaluation dated July 27, 2012, 15
pages
Exhibit 4 Final Notice of Recommendation
dated August 2, 2013, 1 page
Exhibit 5 Mid-Year Speech and Language
Remediation Report for September
2012 to February 2013, 3 pages
Exhibit 6 Evaluation dated April 19, 2013, 5
pages
Exhibit 7 Mid-Year Report Card dated January
30, 2013, 8 pages
Parents:
Exhibit A Dr. , CV undated, 7 pages
Exhibit B Parent Letter dated February 14,
2013, 1 page
Exhibit C Proof of Delivery for February 14,
2013 letter dated February 20, 2013,
1 page
Exhibit D Parent Letter dated August 15, 2013,
1 page
Exhibit E Proof of Delivery for August 15,
2013 letter dated August 15, 2013, 1
page
Exhibit F New York City Department of
Education Progress Report
undated, 9 pages
Exhibit G Parent Letter dated September 23,
2013, 2 pages
Exhibit H Proof of Delivery for September 23, 2013 letter sent on September 24,
2013, 2 pages
Exhibit I Mid-Year Report Card dated
December 20, 2013, 8 pages
Exhibit J Contract dated May 2014, 4 pages
Exhibit K Proofs of Payment various dates, 4
pages
Hearing Officer
Exhibit I Case Follow Up sheets indicating
extensions of the timeline, 6 pages
Exhibit II Department of Education Closing
Statement dated April 10, 2014, 5
pages
Exhibit III Parents’ Closing Brief undated, 30
pages
Footnotes
[1] The issues of reimbursement for evaluations and transportation were not pursued at the hearing and thus were waived.
[2] at 22).3 In developing the IEP the team considered a neuropsychological evaluation by , Ph.D., a examination form provided by the parents ( 14-15, 18, 21). The Department of Education did not conduct a classroom observation. While Ms. testified that an observation “might have been helpful,” she believed that the documents available were sufficient to provide “kind of an idea of how [ ] was functioning in the classroom” and to develop an appropriate IEP, noting that the neuropsychological evaluation contained an
[5] It was Ms. s understanding that in order to be working in a school as a special education teacher the teacher had to be certified in special education ( 42).
[6] Ms. parents presented Dr. ’s Curriculum Vitae as Parents’ Exhibit A. Mr. objected to the admission of the document on the ground that it did not add any information related to the testing documentation. Ms. maintained that the Exhibit is relevant to Dr. s credibility as a witness and her expertise ’s diagnosis (Hearing: 7-8, 167-172). I reserved decision on the objection but conclude that it is admissible. However, I did not rely on any part of that document in reaching my Decision in this case.
[7] In a letter to the CSE 10 Chairperson dated February 14, 2013, stated that a review had not yet been scheduled to develop an IEP for was requiring the parents to sign a contract and submit a $9.800.00 deposit toward ’s tuition for the 2013-2014 school year. indicated that she was going to sign the contract to ensure a placement for NG in the event that the Department of Education did not offer an appropriate program or placement. LS stated in the letter that if the Department of Education did provide an appropriate program and/or placement in a timely manner that she would in that program/placement but that if it did not, she intended to send and request tuition reimbursement. She also requested that the Department of Education provide busing (LS: 66-67; Parents’ Ex. B).
[8] Ms. objected to the admission of this document on the grounds that it is not dated and that since the parents never the school the document is speculative in that there is no information as to what class some of the information on the report during that parents’ visit to the school and because it goes to the basis of the parents’ determination that that the placement was inappropriate for Hearing: 7, 172-174). I reserved decision on that objection but have concluded that it is admissible. It is a document put out for the public by the Department of Education for the school’s performance during the 2012-2013 school year and the parents’ referred to it during their visit to the school and their conversation with the special education teacher and parent coordinator who met with them during that visit. In addition, the information on the report is not speculative in that it encompasses students who would be in the seventh grade with NG for the 2013-2104 school year (LS: 76-77; Parents’ Ex. F).
[9] Citations to pages 160-166 refer to Ms. Rus’ cross-examination of Ms. . Citations to pages 140-144 refer to Ms. Rus’ cross-examination of Mr.
[11] Ms. did not cross-examine Dr. . Ms. did not cross-examine .
[13] The parents also asserted that the CSE team should have included someone who would be responsible for implementing the IEP (DOE Ex. 1 at; IHO Ex. III at 22). This assertion has no merit since there is no legal requirement that the IEP team include someone from the proposed placement. Indeed, an appropriate placement recommendation cannot even be made prior to the completion of the IEP.