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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 16, 2014
March 11, 2014
Actual Record Closed Date: April 28, 2014
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2014
Esq. Attorney, Ph.D. School Psychologist and Chairperson’s Designee Department of Committee on Special Education Education Mother Special Education Teacher Department of — Parents
(via telephone) Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2014
Esq. Attorney — Parents
Ph.D. School Psychologist and
Chairperson’s Designee Department of
Committee on Special Education Education
Mother
Director, — Parents
(via telephone) Lower School
INTRODUCTION
On January 16, 2014 and March 11, 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 10:10 a.m. and 9:35 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 ”). In a letter dated September 26, 2013, LM’s parents, by their attorney, , filed a Due Process Complaint (“Complaint”) requesting an impartial hearing. In that request, the parents maintained that the Department of Education did not offer a Free and Appropriate Public Education (“FAPE”) for the 2013-2014 school year. In particular, the parents alleged that the IEP was not sufficient to needs in that the section of the IEP was not completed and did not explain what actions should be taken if , and that the IEP did not recommend door to door matron-supervised transportation.[1] The parents alleged is appropriate for the child and that the equities favor them. They requested reimbursement for the cost of tuition at , transportation, and related services as well as a Related Service Authorization (“RSA”) for a Health/Crisis Paraprofessional (Parents’ Ex. A). The Department of Education did not file a response.
I was appointed as the Impartial Hearing Officer on September 27, 2013. The original compliance date was December 11, 2013. On October 31, 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 10, 2014, a control date was set for January 3, 2014 and a hearing date was scheduled for January 16, 2014. On January 13, 2013 at the request of the parents for additional time to prepare and present their case and without objection by the District, the compliance date was extended to February 9, 2014. At the conclusion of the hearing on January 16, 2014 at the request of both parties for the availability of witnesses, the compliance date was extended to March 9, 2014. On March 6, 2014, pursuant to a request by the parents for the availability of witnesses the compliance date was extended to April 9, 2014 and a hearing was scheduled for March 11, 2014. At the conclusion of the hearing on that date at the request of the parents and without objection by the District, the compliance date was extended to May 9, 2014 for the receipt of the transcripts and the issuance of a Decision and Order.
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 attending Bay Ridge, 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 have this hearing officer review the transcript and consider the evidence prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay since there was no pendency in the case and the parents, who requested the adjournments, were asking for reimbursement; and (d) for the reasons indicated above any prior delays due to the unavailability of the parents’ witnesses did not require the denial of a subsequent extension request.
THE PARENTS’ POSITION
, Esq., represented the parents at the impartial hearing. Mr. did not present an opening statement or closing statement. However, when asked to specify the issues remaining at the conclusion of the hearing he alleged that, for the reasons specified in the “Issues to be Resolved” section of this Decision and Order, noted below, the Department of Education failed to provide with a FAPE for the 2013-2014 school year, that Bay Ridge is appropriate for and that the equities favor the parents.
THE DEPARTMENT OF EDUCATION’S POSITION
, Ph.D., represented the Department of Education. Dr. did not present an opening statement or a closing statement and did not state the Department of Education’s position in this case.
ISSUES TO BE RESOLVED
1)Whether the IEP dated June 25, 2012 was reasonably calculated to provide the child with educational benefits; 2) Whether the IEP dated June 25, 2012 provided sufficient information in the medical alert section to the explain the procedures to be followed in the event that ; 3) Whether IEP dated June 25, 2012 should have recommended door to door transportation with a matron; 4) is entitled to an RSA for a ;
5) Whether the proposed placement in an ICT class with related services and Special Education Teacher Support Services (“SETSS”) provided the child with a FAPE in the least restrictive environment (“LRE”); 6) 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 a New York City licensed special education teacher ( : 10). She has worked at for five years. She is currently is a SETSS teacher for grades the school and she participates in IEP meetings. In her position as a SETTS teacher she works with students in groups of no more than eight and provides help in the areas of each child’s particular need, usually reading and math ( : 11-12).
provides the related services of occupational therapy, speech therapy, physical therapy and counseling. During the 2012-2013 school year one occupational therapist was at the school every day and second occupational therapist divided her time between and another school; Ms. recalled that to the “best of her recollection” the second occupational therapist was at the school three days a week. The two speech therapists were at the school every day ( : 14, 33-34).2 For the 2013-2014 school year there are two speech therapists at the school every day. There are two counselors at the school. One counselor is there twice a week and the other counselor is there once a week. All of the students mandated to receive counseling are receiving that service. The school has two occupational therapists to work with the students who have occupational therapy mandates ( : 14-15, 17-18, 34). The school has issued RSAs in the past. P.S. 127 also has a SETSS teacher for grades 3-5. As of September 2013 all of the students mandated to receive SETSS were receiving that service ( : 15-16). The school has one Integrated Co-Teaching (“ICT”) class on every grade ( : 18).
Ms. attended ’s IEP meeting on June 25, 2013. The meeting was also attended by LM’s classroom teacher, the school psychologist, the school social worker and parents ( : 19-20, 26; Parents’ Ex. B at 12). Everyone at the meeting had the opportunity to voice concerns and express objections and they discussed what was available at the school for : 20).
The IEP indicates that ’s reading and math levels were at third grade. Ms. recalled that in math” but that “overall” her math was at a 2/3 level (Romano-Angilletta: 20-21; Parents’ Ex. B at10). The team discussed many things at the IEP meeting including s functioning in the classroom at that time teacher provided all of the present levels of performance on the IEP. The teacher told the team that level in reading but needed help in her “overall fluency.” The teacher also stated that although the teacher was able to re-direct was having a bit more difficulty in math with independent tasks and finishing things by herself. ” in the mechanics of writing, putting her thoughts on paper and having stamina, in that she would “ while writing” ( :: 22; Parents’ Ex. B at 1). Ms. recalled that ’s teacher consulted with the to organize a checklist and develop strategies to address her graphomotor difficulties ( : 23-24). One of those strategies was to mark the paper margins in highlighter to keep ’s writing centered. The teacher also extra time to complete her writing assignments ( : 24).
Citations to pages 34-37 and 40-43 refer to Mr. Hoffman’s cross-examination of Ms. Romano-Angilletta.
To address ’s strengths and weaknesses the IEP recommended “Praise and encouragement,” “Task analysis,” “Encourage review of work,” Rereading of directions and questions, and “Redirection and prompting” ( : 24; Parents’ Ex. B at 1-2). Ms. testified that she “knew teacher had her sitting up front and that she used these strategies with , noting that the teacher had “a large input in this part of the IEP” ( : 24-25).
Ms. described as a “friendly, outgoing” child who is a “real leader” and is able to verbally express herself ( : 25-26).
The IEP team classified ” and recommended a general education program with individual occupational therapy twice a week for 30 minutes, counseling once a week for 30 minutes in a group of four students, and SETSS for one period a day, five days a week (Romano-Angilletta: 27-28; Parents’ Ex. B at 6-7). Ms. testified that occupational therapy and counseling were available at the school in September 2013. She also testified that would have been in the for the 2013-2014 school year and that, to the “best of her knowledge,” there was a seat available in the SETSS program at the beginning of the 2013-2014 school year ( : 28-29).
While the SETSS classes for grades are infrequently held in the hallway, the SETSS classes for grades 3-6 are always held in the SETSS classroom (RomanoAngilletta: 40-41).
Ms. opined that the academic goals on the IEP were sufficient , who she believed is a general education student who requires related services and SETSS. She opined that the goals on the IEP address all of the concerns raised at the IEP meeting, including her weaknesses in reading, math and most significantly, writing (RomanoAngilletta: 36-39). Ms. testified that the first two full annual goals written on page 5 of the IEP are appropriate and can be addressed by the special education teacher in the classroom and the small group setting of SETSS. ”) did not object to the goals at the IEP meeting ( : 37-39).
At the IEP meeting was “open and receptive to conversation” about what the school has “to offer that [it] could initiate” ( : 29-30). Ms. believed that the program and services on the IEP provided a FAPE that it provided “more support” for her “areas of weakness” in the LRE ( : 30). Ms. did not recall any objections to the recommendations made for the IEP. did express her concern that the child’s difficulties “could have been picked up earlier” and the child’s teacher explained the strategies “she had tried that year.” stated at the she believed the school had - 35).
. The “Physical Development” section of the IEP explains that identifies her and states that is able to communicate to family members and school personnel. It also indicates that has a “502 plan.” While this section indicates occipital lo[b]e is “described in the Health section” of the IEP, there is no Health” section” and “Medical Alert” section of the IEP is blank ( : 36-36; Parents’ Ex. B at 2).
Ms. was aware that . The school has a nurse on staff and a protocol to follow for support (Romano-Angilletta: 42). Ms. did not know whether needed the nurse when she was at the school ( : 42-43). The Parents’ Case is ”s mother. When was four years- and was diagnosed with occipital lobe (ML: 112-113, 138). 3 She has been on and currently is which addresses both the (ML: 113, 120). The (ML: 113-114). also sometimes gets an aura in which she has a “tingly tongue.” with similar symptoms ( : 114, 135).
as very bright, articulate, friendly and social. She has difficulty when tasks require sustained focus or independent work in that she ” (ML: 114-115).
from kindergarten through the second grade ( 115, 138). In November 2013 . She was that overlap so that also has “ ” for which she has a medication called “ , which and is to be administered if it never appeared at school having a seizure ( 116117).
During year she often got : 126). The nurse called at least once a week with think that and would take her home from school after would sleep for hours and then wake up with her head “pounding.” When this began to happen regularly, two or three times a week, to stay in school and sit with the nurse for a bit ( 116, 140). Sometimes
Citations to pages 138-150 refer to Dr. Meagher’s cross-examination of ML. would go to the school and sit sometimes the nurse would give ibuprofen for pain relief
( : 119).[4]
At would sometimes be sitting on a chair outside the nurse’s office with other students and sometimes she would be in classroom where the teacher would tell that did not feel well but she did not know what was wrong with her ( 128-129). There were times at would be on the stairs or in the lunchroom and the other children were yelling at her to “go,” but she did not realize she was not moving. Sometimes did not “know what happened” during the day ( 130-131). At is either with her classroom teacher or one of the speech and language therapists and, as far as was never unattended (ML: 130).
There were about 550 students at and one nurse. When the nurse was not there a substitute was not aware of Other times, when the nurse was at lunch, the office would call f there was an issue did not believe that medical issues was “closely monitored” (ML: 117-118).
is healthier this year than in the past. Since she has had fewer incidents than she had when at . haven not been seizure or migraine related. When has a headache while at , which has been infrequent, she lies down in a dark, quiet room for as long as she needs to be there and then returns to class, an option that she did not have at Thus, she is able to remain in school all day. has had to pick up rom school only about three times this school year ( 120-123, 141-142). Everyone at
Since the beginning of the current school has shown the greatest improvement in reading, in that she now likes to read whereas it was always a “ to read for 20 or 30 minutes (ML: 124-125, 136). on her math facts and has provided the parents with work sheets to supplement her math facts homework. When solving problems she indicates that she can use different strategies to do so and is more confident than she was before. has a greater degree of enthusiasm at than she did in public school because has a “very engaged curriculum” ( : 125-126, 136).
estified that the and the neurologist, Dr. would benefit from a smaller class environment. explained that the sound in a movie theater and the screen causes her ( : 133). She opined that at and noise 29 students and one teacher, and a cafeteria with “hundreds” of ” for when she does not understand something and the that causes her to “ ( : 133-135).
brother attends public school. If the Department of Education offered a school similar to the parents would consider the placement but felt that the class size was too large and that the school was not equipped to handle and her migraines and seizures ( : 137-138). believed that requires a small class size with children who are working on grade level (ML: 145-147).
believed that would benefit from occupational therapy receiving that service outside of school ( : 147-148). Those therapists are not in contact with 148). is in contact with ’s speech therapists , who send home a book that works on with them. The therapists were also part of the parent-teacher conferences, they and they submitted a narrative on 148-149). is a certified special and general education teacher in New York State and she is the director of the : 53-54, 110).5 The school has 90 students, about 18 or 20 of whom have special needs. Ms. George supervises and initiates the curriculum, teaching and learning in the lower school. She also meets the students for admission purposes, places them in their classes and organizes their schedules. In her role as a consultant teacher Ms. works with the teachers, student teachers, interns and related service providers. She meets with the teachers once a week to discuss lesson plans and modifications for the general education students ( : 55).
Ms. for an interview in June 2013. After reading report and meeting an appropriate student for the school’s “Achieve” program in that she fit the particular profile for the third grade Achieve students. The purpose of that program is to modify the general education curriculum and apply classroom modifications for students with specific learning needs (George: 56-57, 92). ,” most likely as a result of : 57-58). memory and she needs to take frequent breaks. Because of her “ ” and she ” to be broken in to . skills in terms of writing and she . All of the other students in “ have the same profile as (George: 58).
The school does except for the fact that she is in a small class in which noise and stress, which might be “ , are minimized ( : 58-59). The school has a full time registered nurse and a full-time physician’s assistant on staff. The nurse “does rounds” to check on students who have certain needs ( : 59; : 122-123). while at 60, 81). parents told Ms. while she was in the second grade but Ms. did not recall whether they happened at home or in school ( : 61, 81).
There are twelve students in s third grade class; eight are general education students who are functioning level and four of the students, including are in the . There is only one third grade class at the school (George: 64-65; : 145). The teacher of that class , is a licensed special and general education teacher 86-87). The school uses multisensory teaching 74-75). s reading and math are in line with the Core Curriculum ( : 109-110).
When egan at the school she was reading “ ,” which Ms. George testified is the end of a level.[6] To address she arrives at school early every day and from 8:00 to 8:30 a.m. works with the other three third-grade students on an Orton Gillingham based program that addresses specific sounds, symbols, associations and fluency building activities. That class is taught by a licensed reading specialist and general education teacher who has taken the Orton Gillingham training series at of Education. During reading time in her classroom works with the other four Achieve students on reading comprehension strategies, using her decoding and fluency skills in context and on how
5 Citations to pages 81-111 refer to Dr. ’s cross-examination of Ms. lessons about when to make an inference. One pushes into s class three times a week to work and the other three students in the program on reading and another speech and language pathologist pushes in three times a week to work with them on writing ( 62-63, 66-67, 73-74, 82-85, 98-100).
Because of s slow processing speed and her executive functioning issues, she has difficulty with her number facts. To address that issue the teachers re-type the word problems for breaking them down into small steps. The teacher than for each step and keeps her on task ( 63-64). Three or four times a week a psychology intern “pushes into” the class to give support and to help her take breaks when 64).
The school also uses a small student to teacher ratio for reading, writing and math so that the teachers can 68-69). Ms. explained that are addressed by repeating tasks very often and teaching in a very structured way so internalize what is being taught and she gave examples of the strategies used, particularly for her writing ( : 70-71). There is a structured pattern of visual cues to : 72). To school has herself in terms of where her attention is at a certain time, where her attention needs to be and what strategies she can use to : 68).
receives the related services of individual speech and language therapy twice a week (George: 98-100; Parents’ Ex. C at 3). receives individual counseling once a week for 30 minutes from a licensed school psychologist during which she is learning to and to help her transition to has made progress in that she is less frequently frustrated than she was at the beginning of the year. The school is addressing eeds and holds her accountable for what she is being taught, and she is making a “lot of 75-76, 104-106). does not receive occupational therapy or physical therapy at the school. However, there are multisensory, gross motor and sensory coordinating activities throughout the school day and class uses believed to be an appropriate substitution for occupational therapy ( 106-108).
the “average” range. in “math calculation” which is a grade equivalent of in “passage comprehension” which is a grade equivalent of ; ML: 146-147Parents’ Ex. D at 2).
Ms. testified a “tremendous amount of progress” during the current school year and that she was receiving a “tremendous amount of support. When began at the school she was reading “ which is the end of a first grade/beginning . At the time of the reading level 7 and reading early chapter books, with support. Ms. explained that is a more detailed level with a “problem and a theme,” has longer sentences than and requires a greater amount of inferencing than ” ( 62, 66-68, 108-109). While still has to work on her math facts, her problem solving skills have “greatly improved” ( 78-79).
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 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 LM 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
7 The transcript indicates that at the time of the hearing was reading at and was beginning level “ However, the transcript has an omission where Ms. presumable gave the equivalent grade level ( 66). 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. To begin, unless otherwise indicated below I credit the testimony of the witnesses who appeared at the hearing. My Decision is based on the Findings of Fact detailed above with citations to the record and on any additional facts recounted below. 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 188189; 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).
A. The Individualized Education Plan developed on June 25, 2013 was not reasonably calculated to provide with educational benefits.
A review of the June 25, 2013 IEP indicates that it includes relevant and sufficient information about “Present Levels of Performance and Individual Needs” in the realms of Evaluation Results, Academic Achievement, Functional Performance and Learning Characteristics, Social Development and Physical Development. The IEP and the program recommendation reflect the recommendations in the Consultation Report that stated was “currently placed appropriately in a general education classroom” but that she “may benefit from special education supports and accommodations in order to address her .” Among those supports and accommodations recommended were preferential seating at the front of the classroom, positive reinforcement, frequent, monitored short breaks and testing accommodations, all included on the Management Needs section of the IEP (DOE Ex. 5 at 9-10; Parents’ Ex. B at 3). And, the program recommendation provided for the special education supports of SETSS five periods a week, occupational therapy and counseling (Parents’ Ex. B at 6).
The parents assert that the IEP is deficient in that the “ of the IEP is not completed and the IEP does not explain what action should be taken if had a seizure in school (Parents’ Ex. A at 1; Hearing: 152). As the parents contend, the Medical Alert section of the IEP is blank. While the Physical Development section of the IEP describes , and indicates that s able to communicate the onset of her symptoms to school personnel, there is nothing in the IEP that addresses the steps to be taken if suffer a (Parents’ Ex. B at 2, 10). I find that this to be a significant omission.
Moreover and most significantly, the IEP is deficient in that it does not provide sufficient academic goals for the 2013-2014 school year. Specifically, there are only three academic goals on the IEP and they are all for reading. Despite the fact that the IEP team was aware that has significant academic needs in math and, most particularly in writing, there are no goals whatsoever related to those, or any other academic subject areas. The only goals on the IEP that are not reading goals are one each for counseling and occupational therapy. I also find that the occupational therapy goal is not sufficiently specific and that it does not address with the mechanics or the substance of her writing (Parents’ Ex. B at 4-6).
In light of this glaring insufficiency I find that the Department of Education has failed to meet its burden of demonstrating that it provided LM with a FAPE for the 20132014 school year. ***
The parents also assert that the IEP should have provided for matron supervised door-to-door bus transportation to and from school to “protect her health and well-being” (Parents’ Ex. A at 1). I find that the evidence at the hearing was sufficient to support a conclusion was at any given time and thus that supervised transportation is appropriate and should be provided for At the hearing Mr. reiterated the parents’ request that provided with an RSA for a health paraprofessional (Parents’ Ex. A at 2; Hearing: 150-151). While the parents asked for an RSA or reimbursement for a heath paraprofessional in their Due Process Complaint and in their 10-day notice letter (Parents’ Exs. A at 2, G), there is no indication in the testimony or the evidence that a health paraprofessional was requested or discussed prior to, or at, the IEP meeting. Nor was there any evidence to support a finding that a health paraprofessional is necessary or appropriate . Thus, I find that the absence of a health paraprofessional on the IEP was not a defect in the document and that the parents are not entitled to an RSA for that purpose.
B. The recommended placement was not appropriate for The parents contend that was not appropriate to meet s needs for the 2013-2014 school year. I find that the evidence and testimony at the hearing demonstrate that the school would have been an appropriate placement for academically. However, due to her health issues I find that the placement was inappropriate.
The program recommended for was an ICT class with five periods of SETSS a week, counseling in a group of four students once a week for 30 minutes and individual occupational therapy twice a week for 30 minutes. As noted above, this recommendation reflects the recommendation in the that stated as “currently placed appropriately in a general education classroom” but that she “may benefit from special education supports and accommodations in order to address her attentional and learning needs.” Among those supports and accommodations recommended were preferential seating at the front of the classroom, positive reinforcement, frequent, monitored short breaks and testing accommodations, all of which are included in the Management Needs section of the IEP (DOE Ex. 5 at 9-10; Parents’ Ex. B at 4).
Ms credibly testified that would have been able to implement the IEP in that, to the best of her knowledge, SETSS teacher, occupational therapist and school counselor were available for the child on the first day of the 2013-2014 school year. The fact that parents believed that the school failed in the past is not dispositive on this issue since ’s initial referral to the CSE was on May 16, 2013, this was the first IEP implemented for and the first time that special education supports were being provided for her. Thus, the program that would have attended for the 2013-2014 school would have provided with accommodations to meet her unique special education needs, something that was not in place in prior years.
However, I find that the evidence and testimony demonstrated that P.S. 127 was not appropriate in light of from school numerous times over the course of the school year due to . She also testified that noise was a , that there were “hundreds” of students in the cafeteria and that most of the times she was called to school because was ill took place after lunch (ML: 126). This testimony supports a conclusion that the noise level of the students in the cafeteria was a trigger and that the physical manifestations of those headaches caused , thus missing the classwork taught in the afternoon and rendering her unable to complete her homework. Ms. , the only Department of Education witness, did not refute any of s testimony on this issue. Nor did the Department of Education refute s testimony that the school nurse was not always available to attend to , and that at times when the nurse was not there either remained in the classroom or went to the school office. also explained that that resting in the nurse’s office until she felt better was not an option for (ML: 123).
Thus, I conclude was not an appropriate placement for the 2013-2014 school year. ***
For the reasons stated above I find that the Department of Education failed to provide 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 met special education needs. 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. I find that the parents’ have met this burden.
The Neuropsychological Consultation Report indicated that meets the criteria epilepsy” (DOE Ex. 5 at ). As noted above, the report recommended, among other things, a general education classroom with “special education supports and accommodations in order to address her attentional and learning needs” (DOE Ex. 5 at 9-10).
Ms. , the director of the in the “ at the school. places students with specific learning needs in a general education classroom. The school modifies the general education curriculum and applies classroom modifications for those students ( 56-57, 92). There are twelve the third grade class -- four , including , and eight general education students who function at or above grade level. The program provides special education services and accommodations that reflect the recommendations in the (DOE Ex. 5 at 9-10).
arrives at school 30 minutes early each day when she and her three classmates in the attend an Orton Gillingham reading session with a licensed reading specialist. In class, gets extra help in reading and witting from the two speech therapists who each push into the classroom three days a week to work students. In addition, receives individual speech therapy twice a week and individual counseling by a school psychologist once a week.
The teachers at that address her executive functioning and slow processing issues. For example, in math the teachers break word problems into small steps and keep her on track by asking her questions for each step. Instruction in reading, writing and math takes place in small groups and the teacher using repetition and structure to ensure that can internalize what is being taught. The teacher also her attention by noting where her attention is at a particular time, noting where her attention should be at that time and what strategies she can use to keep her attention where it should be.
Ms. described the progress has made this year. At the time of the impartial hearing which is an end of first grade/beginning second grade level with often two characters, to early stage chapter books which are longer, contain more detailed writing and often have a problem, a theme and multiple characters. ” books require more inferencing than those in have more compound sentences and require more stamina (George: 66-68). Ms. also explained is improving in her problem solving skills. testified about improvement in reading and explained that she now refers at home to the strategies that she can use to solve problems in her school work.
The testimony also established has a registered nurse and a physician’s assistant on staff every day. does not feel well she is able to rest in a quiet, dark room and return to class when she feels better. Moreover, ’s testimony showed that been she has had 8 than she had while In addition to having only twelve students in her class at , the school has only 90 students in total. As previously stated, credibly testified that triggers for . I find that a reasonable conclusion to be drawn from s testimony and from that of Ms. is that because of the small number of class and in the school in general, the level of noise is sufficiently minimized so that it This conclusion is supported by s unrefuted testimony that there were “hundreds” of students in the cafeteria at and that most of the time that required her to be taken out of school occurred after lunch and has been taking three doses of twice a day since January 2013 and thus was on the same level of medication for the second half of second grade as she was while attending resulted in prolonged exhaustion and arrived at home. I also credit that for , and that her stress level is greatly reduced because of the strategies they use to teach her subjects with which
In sum, I find that the parents met their burden of is “reasonably calculated to to receive an educational benefit.” Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. Moreover, I find that is the LRE for it meets her special education needs while in a general education class where the majority of the students are at or above grade level. ***
At the hearing Mr. reiterated the parents’ request that be provided with an RSA for a health paraprofessional (Parents’ Ex. A at 2; Hearing: 150-151). While the parents asked for an RSA or reimbursement for a heath paraprofessional in their Due Process Complaint and in their 10-day notice letter (Parents’ Exs. A at 2, G), there is no indication in the testimony or the evidence that a health paraprofessional was requested or discussed prior to, or at, the IEP meeting. Nor was there any evidence to support a finding that a health paraprofessional is necessary or appropriate . Thus, I am remanding the case to the CSE to consider all of the relevant information about nd determine whether a health paraprofessional should be added . III.
The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.
I conclude that the equities support the parents. There is no evidence or testimony to support a conclusion that the parents failed to cooperate with the Department of Education in the development of an IEP and the Department of Education does not contend otherwise.
attended , first and second grades, all before she was referred for special education services. The parents cooperated with the CSE in that they provided the CSE with Report that they obtained and they both attended and participated in the CSE meeting. Ms. testified that the parents did not until the end of June 2013 and they did not sign the Contract until August 23, 2013. In a letter to the CSE 7 Chairperson dated August 22, 2013, a day prior to signing the Contract and more than 10 days prior to the beginning of the 2013-2014 school year, the parents indicated that they did not believe the program offered by the CSE for the 2013-2014 school year was appropriate to meet needs, that they were unilaterally placing and that they would seek tuition reimbursement. They also asked for an (Parents’ Ex. G at 1).
For the reasons stated above I find that the equities in the case support the parents. * * *
In light of the above findings of fact and conclusions of law, I find that the Department of Education is required to reimburse the parents for for the 2013-2014 school year. The amount of reimbursement is not to exceed $26,500.00 (Parents’ Ex. I).
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 at , proof of payment by the parents and proof attendance, the District is reimburse the parents for the tuition. 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. The total amount of reimbursement is not to exceed $26,500.00 and
b) Immediately upon receipt of this Decision and Order the Department of Education is to provide with matron supervised bus transportation to and from Dated: May 7, 2014
Rona Feinberg, Esq. gc
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
Parents: [9]
Exhibit A Impartial Hearing Request dated
September 26, 2013, 3 pages
Exhibit B Individualized Education Program
dated June 25, 2013, 18 pages
Exhibit C Report Card with Attendance Record
2013-2014 school year, 10 pages
Exhibit D OMITTED
Exhibit E Department of Education
Occupational Therapy Evaluation of
School Function and Participation
dated June 14, 2013, 3 pages
Exhibit F Omitted as duplicative
Exhibit G Notice Letter dated August 22, 2013,
2 pages
Exhibit H OMITTED
Exhibit I Contract dated August 23, 2013, 2
pages
Exhibit J School Affidavit dated January 10,
2014, 1 page
Exhibit K Parents’ Payments various dates, 1
page
Exhibit L EBS Private Provider Invoice dated
November 25, 2013, 1 page
Exhibit M Letter from Requesting
Educational Testing of the Student
Prior to the Individualized Education
Plan Meeting dated September 18,
2013, 1 page
Exhibit N Non Comprehensive List of Dates
when Student’s Attendance was
Affected Due to Sickness for the
2012-2013 School Year, undated 2
pages
Exhibit O Public School-Individual Profile of
Progress undated, 1 page
Exhibit P Public School-Student’s Work
Sample undated, 2 pages
Exhibit Q School-Student’s Work Sample
undated, 1 page
Exhibit R Letter from NYU Comprehensive
Center dated March 7, 2014, 1 page
Exhibit S Letter from New York and PLLC
dated March 8, 2014, 1 page
Department of Education:
Exhibit 1 Individualized Education Program
dated June 25, 2013, 12 pages
Exhibit 2 Final Notice of Recommendation
dated June 25, 2013, 1 page
Exhibit 3 Occupational Therapy Observation
Form/Tracking Form dated May 3,
2013, June 14, 2013, 2 pages
Exhibit 4 Verrazano Vision Inc. Letter dated
June 19, 2013, 1 page
Exhibit 5 Consultation Report dated March
2013, 12 pages
Exhibit 6 Classroom Observation dated June
11, 2013, 1 page
Exhibit 7 Initial Referral to Committee on
Special Education dated May 16,
2013, 4 pages
Hearing Officer
Exhibit I Case Follow Up sheets indicating
extensions of the timeline 5 pages
Footnotes
[1] The Complaint also alleged that the parents did not receive a Final Notice of Recommendation (“FNR”) and thus that they were not able to evaluate the recommended public school placement. These claims were withdrawn at the conclusion of the hearing (Parents’ Ex. A at 1; Hearing: 150-152). At the conclusion of the hearing Mr. asked for a Related Service Authorization (“RSA”) for occupational therapy. Since this issue was not raised in the Complaint it will not be addressed in this Decision and Order.
[4] LM began taking Depakote in January or February 2013. At some point the dose was increased from two pills twice a day three pills in the morning and at night (ML: 120, 141-142, 144). In July 2013 the family went to Ireland to visit LM’s grandfather. There, LM had migraines and what might have been a seizure related to sleep deprivation. ML did not recall any seizures or migraines in August (ML: 144).
[6] According to the June 13, 2013 psychoeducational evaluation, scored 102 in “letter and word identification” on the Woodcock-Johnson assessment which is a grade equivalent of 3.1, 98 in “spelling” which is a grade equivalent of 2.7, 98 in “applied problems” which is a grade equivalent of 2.8, all within
[9] Dr. the Department of Education representative, objected to the admission of Parents’ Exhibits D and H on the ground that they are not relevant to this hearing. Specifically, he alleged that Exhibit D, the Department of Education Evaluation dated September 26, 2013, is not relevant to the 2013-2014 school year because it was administered on September 26, 2013, after the school year began and thus it was not available to the CSE when it developed the June 25, 2013 IEP that is the subject of this impartial hearing. Dr. also alleged that Exhibit H, a letter from the child’s mother dated December 2, 2013 in which she requested a second IEP meeting, is also not relevant to this hearing as it was written after the school year began and refers to an IEP meeting for 2014-2015 school year (Hearing: 8). For the reasons cited by Dr. I find that the these Exhibits are not relevant to the instant case and thus they have been omitted. Parents’ Exhibits R and S were written in March 2013 and thus I find that those exhibits, too, are not relevant to this hearing. They were not omitted from the evidence because Dr. did not object to their admission (Hearing: 50-51). However, they were not considered in the issuance of this Decision and Order.