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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: October 10, 2013
December 2, 2013
February 12, 2014
February 24, 2014
April 10, 2014
Actual Record Closed Date: May 14, 2014
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 10, 2013
CSE Representative Department of Education
Advocate — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2014
CSE Representative Department of Education
Advocate CSE Psychologist Department of Education — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12,
2014
CSE 8 Representative Department of Education
Advocate Principal, Department of — Parents
(via telephone) Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24,
2014
CSE 8 Representative Department of Education
Advocate Mother — Parents
SEIT — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2014
CSE 8 Representative Department of Education
Advocate — Parents
(via telephone)
INTRODUCTION
On October 10, 2013, December 2, 2013, February 12, 2014, February 24, 2014 and April 10, 2014, I conducted an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1), regarding the education program of a school- ). The hearing commenced at 11:00 a.m., 1:48 p.m., 1:11 p.m., 1:45 p.m. and 4:00 p.m., respectively, and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
old and is classified as . She currently attends ”) at parental expense and is receiving Applied Behavior Analysis (“ABA”) Special Education Itinerant Teacher (“SEIT”) services in Yiddish and the related services in Yiddish and occupational therapy and physical therapy pursuant to an Order of Pendency filed on or about October 16, 2013.
In a request for an impartial hearing dated September 24, 2013, the child’s parent, by her advocate , alleged that the Department of Education did not provide with a Free and Appropriate Education (“FAPE”) for the 2013-2014 school. The parent asserted that the Individualized Education Program (“IEP”) developed on May 21, 2013 for the 2013-2014 school year was procedurally and substantively flawed and that the program recommended on that IEP was in appropriate, in part because it was not the least restrictive environment (“LRE”) for The parent also alleged that while the IEP indicated a bilingual Yiddish class also indicated that could be placed in an English speaking class on an interim basis but did not mandate a Yiddish speaking paraprofessional in that circumstance. In addition, the parent alleged that the proposed placement, a was not appropriate for for several reasons, including the fact that it was not a bilingual Yiddish class. The parent asserted that ST’s program as per the last agreed upon Individual Education Services Plan (“IESP”) of 20 hours of ABA/SEIT or ABA/SETSS in Yiddish and the related services of two 30-minute session s of individual speech and language therapy in Yiddish, three 30-minute sessions of individual occupational therapy and two 30-minute individual sessions of physical therapy, are appropriate for and asked that the Department of Education be ordered to provide ST with that program for the 2013-2014 school year (Parents’ Ex. A). The Department of Education did not file an Answer.
I was appointed as the Impartial Hearing Officer in this case on October 1, 2013 and the original compliance date was December 16, 2013. A pendency hearing was held on October 10, 2013. At the conclusion of the hearing held on December 2, 2013 at the request of both parties for the availability of witnesses, the compliance date was extended to January 15, 2014, a control date was scheduled for January 8, 2013 and hearing dates were scheduled for February 12, 2014 and February 24, 2104. On January 13, 2014 at the request of both parties for the availability of witnesses the compliance date was extended to February 14, 2014. At the conclusion of the hearing on February 12, 2014, at the request of both parties for the availability of witnesses the compliance date was extended to March 16, 2014. At the conclusion of the hearing on February 24, 2014 at the request of both parties for the receipt of the transcripts and for closing arguments the compliance date was extended to April 15, 2014 and hearing date was scheduled for March 18, 2014. On April 10, 2014 at the request of both parties for the hearing officer to review the transcripts and the closing arguments and to issue a Decision and Order the compliance date was extended to May 15, 2014. On May 13, 2014 at the request of the parent because of the late receipt of Corrected transcripts and without objection by the District the compliance date was extended to June 13, 2014 so that the hearing officer could review the corrected copies of the transcripts and issue 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 , the independent placement and was receiving her services pursuant to pendency 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 parties were entitled to the opportunity to secure witnesses to appear at the hearing in support of their respective positions and the parties were entitled to issue closing statements based on the transcript and have this hearing officer review the transcripts and the corrected transcripts and their closing statements prior to the issuance of a Decision and Order; (c) although the child is receiving services pursuant to pendency the District joined in all but one of the extension request and did not object to the last request by the parent and thus there is no reason to conclude that there were any 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
represented the parents at the hearing. She alleged that the Department of Education did not provide the child with a FAPE for the 2013-2014 school in that the IEP was procedurally and substantively defective, the class with related services was not sufficient to meet s special education needs in the LRE and that in any event, the recommended placement at was not appropriate for The parent maintained that the program of services as per the last agreed upon IESP was appropriate in conjunction with ’s class at at parental expense, and that the equities of the case support the parent. Ms. asked that the Department of Education be ordered to pay for the program on the last agreed upon IESP for the current school year.
THE DEPARTMENT OF EDUCATION’S POSITION
represented the Department of Education at the hearing and he maintained that the Department of Education provided the child with a FAPE for the 2013-2014 school year. Specifically, the Department of Education maintained that the May 21, 2013 IEP was developed in collaboration with the parent and was based on the parent’s concerns and input at the meeting. The Department of Education also asserted there was place for at the start of the 2013-2014 school year and that ST would have received her related services at the school. Although the recommended placement did not have bilingual Yiddish class for stated that could have acquired English in two or three months. The Department of Education posited that there was no evidence that the IESP program was reasonably calculated to provide ST with an educational benefit and that the equities of the case favored the Department of Education (Hearing: 260-265).
ISSUES TO BE RESOLVED
1) Whether the IEP was procedurally and/or substantively defective 2) Whether the program with related services on the May 21, 2013 IEP was appropriate to meet ST’s unique special education needs in the LRE; 3) Whether the placement at was appropriate for ; and 4) If the Department of Education did not provide with a FAPE for the 2013-2014 school year, what, after considering the equities of the case, would be the proper remedy?
FINDINGS OF FACT
The Department of Education’s Case
YAACOV DANZINGER has a Master’s Degree in school psychology and is a New York State certified school psychologist ( 16). He has been the school psychologist at Committee on Special Education (CSE) 8 for three years ( : 16-17). The March 7, 2013 IESP Meeting[1]
Mr. participated in ST’s “turning five” IEP meeting held on March 7, 2013 ( : 20). The IEP team was not duly constituted because there was no general education teacher in attendance (( 21; DOE Ex. 5 at 10). A Department of Education special education teacher attended the meeting but there was no general education teacher, classroom teacher, special education teacher or related service provider who was working, or had worked with : 22-23). The only one at the meeting who her mother, : 23). Mr. did not know what steps, if any, the CSE made to ensure that someone other than the parent who knew would attend the meeting ( 23). There was no parent member in attendance. was given the opportunity to reschedule the meeting because a parent member was not available but she agreed to hold the meeting without one ( 49, 78-79). Mr. did not recall whether anyone at the meeting gave a booklet with her due process rights but he believed that the booklet is usually given to the parent during the preschool process : 48, 79).
The team had teacher and related service provider reports that ST’s current school had sent to the believed that those documents were sufficient for the team to make a recommendation that would meet : 24-25). Mr. also testified that the Student Progress Reports for were dated April 27, 2012 and May 31, 2012, that they were not current for an IEP meeting in the Spring of 2013 and that he believed updated information was needed. When Mr. asked the CPSE administrators about more current documents he was told that these were the documents the school provided ( : 48, 59, 78, 82-83). Mr. did know whether a evaluation or a social history was conducted for ST upon aging out form preschool to school age and he did not recall whether one of the documents reviewed at the IEP meeting was evaluation report. Mr did not IQ scores by IQ scores are not relied upon to make recommendations : 46-48).
To Mr. s knowledge, no one conducted a classroom observation of ST prior to her aging out of the CPSE : 45).2 Mr. explained that a classroom observation is “very valuable” in that it would have provided the IEP team with a “firsthand look as to how
(ST) was developing” and how any documented behaviors were impacting on her functioning in a classroom environment ( 45-46). He explained that legally, an observation is mandated only for initial evaluations; he did not know the last time ST was observed in her preschool program ( : 46).
The IEP team considered several programs at the meeting but ’s mother, rejected all of them and indicated that she was going to send and that public school was not an option ( : 25-26, 75). agreed to parentally place and accept the related services offered by the CSE ( 26; DOE Ex. 5). The Management Needs section of the IESP notes, among other things, that a public school option such as an Integrated Co-teaching (“ICT”) Class, a class, a class or a class would be inappropriate academic and social needs and that placement in with the assistance of related services would be appropriate ( 26-27, 55; DOE Ex. 5 at 2). The related services recommended on the IESP were individual speech and language therapy in Yiddish twice a week for 30 minutes and once a week for 30 minutes in a group of three, individual occupational therapy three times a week for 30 minutes and individual physical therapy twice a week for 30 minutes (DOE Ex. 5 at 6-7). While at the time of the also receiving 20 or 25 hours of Special Education Itinerant Teacher (“SEIT”) services, the team did not believe that SEIT or Special Education Teacher Support Services (“SETSS”) was necessary for the 2013-2014 school year since ST was going to receive related : 56-57). Ultimately the team and TT collaborated and developed a program that the team felt would be appropriate for : 62).
Mr. reviewed the IESP with several times and it was his understanding that TT understood what the IESP represented. signed an Final Notice of Recommendation (“FNR”) at the meeting indicating that she consented to the services and that she was placing in a private school at her own expense, and she was given a copy of that document ( : 27-28, 50-51, 53-54; DOE Ex. 4).
At ’s request the CSE sent her the IESP via email on May 6, 2013. On May 10, 2013 sent Mr. an email indicating that she was concerned about the recommendations on the IESP and that she did not understand what was offered. Specifically, did not understand the reference to programs referred to in the Management Needs section of the IESP and did not understand whether ST had to attend a public school in order to get SEIT services : 30; DOE Ex. 1 at 1; Ex. 5 at 2). On May 10, 2013 Mr. called TT to reschedule a conference so that he could explain the IESP and what had agreed to. A letter was also sent to another meeting for May 21, 2013. He left several messages between May 10, 2013 and May 21, 2013 and sent a letter her as well about another meeting (Danzinger: 30-31; DOE Ex. 1 at 1). ultimately returned Mr. s phone call ( 31, 33). The May 21, 2013 IEP Meeting
The documents available to the CSE team at the meeting were the same as those used at the March 7, 2013 meeting, except for a medical form provided by The CSE team members were the same as those who attended the March 7, 2013 meeting. Mr. testified that the IEP team was not duly constituted because there was no general education teacher present. None of s providers or teachers participated in the meeting
Citations to pages 45-71 and 81-84 refer to Ms. Shapiro’s cross-examination of Mr. Danzinger. and there was no parent member participating. participated by telephone (DOE Ex. 3 at 14). The events log for the case does not indicate that the CSE tried to reach ST’s SEIT providers or general education teacher to participate at the IEP meeting. TT participated by telephone. Mr. did not believe that the absence of a general education teacher adversely affected from receiving and educational benefit because, based on the information provided and s input, the recommended program would have been able to of whether a general education teacher was present ( : 35-37, 52-53; DOE Ex. 1 at 1).
The team looked at how ST’s needs could be met in a public school environment. Based on the information in the documents and that the team determined recommended class in a community school ( 33-36). The team based its recommendation on a “least restrictive environment” (“LRE”) approach and the fact ” within her environment. The team considered and rejected as too restrictive it concluded benefit from a class with a small student-to-teacher ratio, related services and a school where she would have ample opportunity to be with typically developing peers would help as well as : 33, 3840; DOE Ex. 3 at 13).
The IEP indicates speaks and understands Yiddish” (DOE Ex. 3 at 13). The IEP indicates that the class instruction, as well as the speech and language services, would be in Yiddish Mr. ( 42-44, 65-66; DOE Ex. 3 at 7. The IEP also indicated that if a bilingual class was not available, be placed in a monolingual class on an interim basis pending the availability of a bilingual 43-44, 66-67; DOE Ex. 3 at 12). The IEP does not provide for a Yiddish speaking paraprofessional in the event that the child is placed in an interim monolingual English speaking class and Mr. did not recall any discussion about a Yiddish speaking or crisis paraprofessional at either the IESP or the IEP meeting ( 6465). Mr. opined that because is “such a young age” she can still benefit from being in an English speaking class because she has not yet “mastered” either English or Yiddish, and that “bilingual” means that she knows both English and Yiddish (Danzinger: 67-69). He also testified that when if the placement office does not have bilingual Yiddish placement, by default” it should “automatically” provide an interim Yiddish-speaking paraprofessional ( 69-70).
told that there was a bilingual Yiddish program in District 14, that the IEP would be given to “placement” and that placement would find an appropriate program for based on the recommendations at the conference, but that he could not “speak to which school” would “necessarily attend” The FNR recommended a placement ; Mr. did not know whether that was a bilingual Yiddish placement ( : 66; DOE Ex. 7). The FNR does not indicate a bilingual Yiddish paraprofessional ( 66, 70; DOE Ex. 7).
The goals on the IEP were the same as the goals on the March 7, 2013 IESP because the team’s expectation academic and social growth remained the same. The supports to meet those goals changed in that there would be an extra teacher within the classroom setting and the small academic environment : 40-41).
While discussed at the meeting the team did not conduct a Functional Behavior Assessment (“FBA”) or develop a Behavior Intervention Plan (“BIP”). The team did conduct an FBA because there was no time to do so and because Mr. believed that behaviorally modify” those behaviors which have an time the team developed the IESP and that the CSE asked the team to review the case with the information that it had at the time -59). The team did not consider counseling for : 65).
. She has New York State certification in special education and has worked for the Department of Education for 22 years : 91-93). Ms goes into the classrooms every day and does five yearly formal observations in each class ( 94-95). The school has classes in grades K through 5 and 12:1:1 special education classes. There is “bridge” class for grades K through 2 with students ages five through eight ( : 93-94). Ms. Renny did not recall the number of students in that class at the beginning of the 2013-2014 school year but believed that there were six students whose classifications were learning disability, speech and language impaired and emotional disturbance.[3] Two of the students were in kindergarten, three in first grade and one in second grade. There were three students in the class with autism but they were classified as having either a learning disability or a speech and language impairment ( 96-97, 115). 4 There were two paraprofessionals in the class at that time ( 115-117). There are currently twelve students in the class, the last of whom joined the class after the Christmas break. There are currently four paraprofessionals in the class, three of whom are there for individual students and all of whom speak Spanish ( : 114, 116-118). All of the students in the class speak English ( 118). Ms. did not know whether the teacher or the paraprofessionals in that class are trained in ABA ( 121-122).
During the current school year none of the classes in the school are bilingual and there are no bilingual Yiddish teachers or speech and language therapists came to the school with a bilingual Yiddish mandate the parents would have to get a provider outside of school ( : 119, 132). In would be taught in English. IEP indicated a Yiddish speaking paraprofessional Ms. would have gotten one If the IEP did not include a Yiddish speaking paraprofessional Ms. would not have been able to one for her ( 122123, 132-134).
At the beginning of the 2013-2014 school year P.S.16 had a speech and language therapist and an occupational therapist on staff. The occupational therapist began in December and she sees about 16 or 18 students; the therapist would have been able to provide ST with occupational therapy three times a week for 30 minutes as mandated on her IEP. The physical and occupational therapist have their own rooms in the school. Until that time there was only one student with mandated occupational therapy and he had a Related Services Authorization (“RSA”) for that service. The occupational therapist came on staff when en two new students came into the school with mandated occupational therapy on their IEPs ( : 99-101, 120-121).
Ms. reviewed ST’s May 21, 2013 IEP, which is similar to those of the children in the school ( 102-103). The teacher in the K-2 12:1:1 class has New York state certification for special education, grades N-6 ( 104-105). She is not a bilingual Yiddish teacher ( : 105, 115). If attended the school she would be taught in : 105-106).
If a student who a BIP that BIP is written with family involvement and is implemented between the school and the : 106). Three students in the K-2 12:1:1 class have individual BIPs that were developed by the teacher to ; one of those students has 108-109, 113-114). a school-wide “Leader in Me” program that teaches the students how to make the correct choices, how to think about other people and how to feel empathy ( 107). The behavior of the students, including those in class, is tracked in the classroom and at the end of each month the teacher chooses the student who has done the best and that student is “celebrated” : 108).
The students in the have “writing time” with the general education class in their particular grade and they are accompanied by a : 109). The students are mainstreamed for gym, lunch, music and : 109-110).
Ms. not visiting the school. She recalled that another woman who comes often for Hasidic children came to visit in June or September and she was believed that that person was parents because she wanted to see she brought an FNR and she stated that she was there to look at the school for the parents. The woman did not ask any questions specifically ( 110-111, 129-130).
The Parent’s Case
mother (TT: 198-199). . During the 2012-2013 school year TT received occupational therapy, physical therapy and SEIT services (TT: 198-199). In December 2012 the Department of Education conducted and TT received the results of that evaluation (TT: 201).
In March 2013 attended an IEP meeting for the 2013-2014 school year; she was the only person at the meeting who knew (TT: 200-201, 203).5 At that time the IEP team had information about ST and the classification was “Other Health Impairment” (TT: 201-202). The IEP did not recommended a placement and the team told her ST would get occupational therapy, physical therapy and speech therapy; the IEP did not recommended special education. her at the meeting and by ’s behavior. At the time thought she understood what was recommended and she did not tell anyone from the District that she did not understand what they were telling her. However, when she received the IESP on May 6th she realized that she had not understood what was told to her at the meeting. did not know the difference between and IEP and an IESP (TT: 202203, 221-224, 226, 228). When she read the IESP she saw that was classified as “Other Health Impaired” and did not understand why the classification was .” She also saw that
Citations to pages 221-248 refer to Ms. ’s cross examination of TT. there was no behavior plan and no bilingual services or anything to 227). sent an email to the CSE stated that she did not understand what was discussed at the meeting “needed more” than what was on the IEP ( : 204, 224-225). Mr. scheduled another meeting for May ( : 204-205, 228).
At the meeting on May 21, 2013 appeared by telephone. ST’s SEIT did not attend ( 205). The IEP recommended a placement. id not disagree with the recommendation and thought it “made sense at the time.” was told that she would receive an FNR in the mail. She received the IEP about two weeks after the meeting and she called the CSE for the placement recommendation. She was told to call a few more times but still had not received the placement by mid-June. -244).
Pursuant to Ms. anyone to look at the school for her and went by herself. TT met with the school psychologist, a male whose name she did not recall. The psychologist although Ms. she was coming to the school, the computer did not indicate that as assigned to the school (TT: 206, 239, 243). saw the proposed class, the only class, and met the teacher and asked questions. There were no children in the class. The teacher did not have any training in working with other than one class she had taken on autism spectrum children, and she told ( 205-208, 234, 239-242). testified that she asked the teacher what she would do and the teacher of the down.” would lose a not recall whether be able to in Yiddish at the school ( 208-209). TT was told that ould be in that class for the 2013-2014 school year if she attended the school. TT was at the school for about 20 minutes ( 207, 237-238, 241-242). A few days after her visit sent a letter to the CSE stating not appropriate : 210).
A few days later, on the last day of school in June, received a written placement recommendation . (TT: 210, 229-234). went over to the school that day and observed a classroom in which all of the and very different issues from (TT: 210). The class was bilingual Yiddish but was told they would try to mainstream in a regular classroom; however, that class would be in English (TT: 212-215). After notified the District that was inappropriate she received a letter dated July 12, 2013 recommending She rejected that placement based on what she had seen there on her visit in June (TT: 215-216, 235236; DOE Ex. 7). The District made no other placement recommendations (TT: 216217).
SHIFRA LITZMAN is ST’s SEIT. She has a Master’s Degree in special education and has New York State certification as a special education teacher for grades 1-12 and has a bilingual extension in Yiddish. At the time of the impartial hearing Ms. was completing her certification as a Board Certified Behavior Analyst (“BCBA”) (Litzman: 140-142, 144, 172).[6] Ms. taught classes for children with special needs for 11 years, including 12:1:1 preschool classes in New York City public schools ( 142-143, 172-174).
During the 2012-2013 school year Ms. lead SEITs in ST’s preschool class at Beit Yaakov. Ms. did not attend an IEP meeting in March 2013 but she wrote a Progress Report for that meeting 155-156). Based on her experience teaching in a classroom Ms. did not believe that such a class would be appropriate for the 2013-2014 school year ( : 156-157). She explained that the children in class are very low functioning and that ,” and her issues are social. would not have appropriate peers for ST to interact and learn with 157).
At request Ms continued working with the lead SEIT for the 2013-2014 school year Pre-1A class at Beit Yaakov. There are approximately 16 or 18 students in ’s class and there is one teacher and one assistant. The language of the students is predominately Yiddish. She works in the classroom for most of that day to keep ST on par with her classmates and she also works 1:1 for about an hour each day outside of the classroom (Litzman: 145, 148-150, 170, 174, 180; TT: 217). Ms. set up different behavior programs and she helps other SEITs if there are problems with these programs (Litzman: 145-146) .[7] Ms. meets with the other SEIT providers once or twice a month when they set up behavior programs for discuss goals and whether is following through with the programs that were set up for her. If there is an “issue” the SEITs reassess what is being done (Litzman: 147-148, 164, 179-180). All of the SEIT providers use ABA with ST. The SEITs do not take discrete trial data on ST is too high functioning for discrete trials. Rather, Ms. sets up behavior programs for ST to improve her social skills and work on : 148, 167-168, 177-178, 185-186). Ms. does take data for an “ABC assessment,” which is an “action, behavior, consequence” chart that shows what is taking place before and after a particular behavior. This assessment helps Ms. be proactive in developing behavior programs for ST ( : 187). The other SEITs do not take this data regularly ( 187-188). Ms. opined that ST would “absolutely not” be able to function in school and progress without a behavior intervention plan on her IEP ( : 196-198).
is social interaction with her peers. She has difficulty sitting with her peers during circle time and always wants to “be on the side. This year a behavior program was created for : 150). Last year . If any issue presents itself before enters the classroom it usually affects her throughout the day in the form of tantrums and one of the responsibilities of the SEITs is to . At times will call Ms. in the morning before school to let her know had a “hard time,” for example if the bus did not stop exactly where it needs to stop, a circumstance that “sets ( : 150-151, 153-155). To address such an issue, the providers do daily intensive exercise with ST so that she can “let out steam” and they have a daily brushing routine for 168, 189). The SEITs provide a lot of sensory input as well, with help from the occupational therapist, a system that has helped relieve . The input includes exercises and activities such as playing with therapeutic dough. If that method does not carries the behavior throughout the day and at times the SEIT had to remove that relaxed her. The SEITs also worked on interaction through play. While knew what to do with a toy, she did not know how to initiate or ask another child to play with her. The SEITs were working on those skills with ST at the end of the 2012-2013 school year ( 151-152, 154-155, 188).
At the end of the 2012-2013 school year Ms. did not believe could go into a general education class without special education teacher support. “very much” relies on assistance and she would not able to succeed without such assistance because her behaviors are inconsistent. For example, one may be on par with her classmates and the next day it may be as if she never learned what she had, in fact, learned the prior day. s teacher has told Ms. that some days will not follow a directive until everyone else in the class has already done so and other days can go into a “trance,” meaning that in the middle of doing work her eyes go to another point in the classroom. She can remain that way for about a minute and has to be redirected to what she was doing by using gestural prompts to her to get back on target. Most of the back” and she is consistent throughout the day but needs someone sitting next to her and to direct her back to her work ( 152154, 181). Ms. opined could not function in her current class without a SEIT would interfere with her classroom performance. Without a SEIT ST would not be able to self-monitor or control her : 159-160, 170-171, 181-182). Because neither of teachers are certified or have an educational background they would be able to implement the behavior plans Ms. developed without the SEITs. It is not unreasonable to conclude that a special education teacher would be able to implement the programs : 184-185).
Ms. testified that this is doing “beautifully” in class. Cognitively she is achieving the goals set in the classroom and academically she is on par with the rest of the class. Most of the sessions with the SEITs are based on social interaction and her anxiety issues. They also focus on because she has and her writing skills are somewhat weak even though it has improved with the interaction ( : 158-159). ST’s communication skills have also improved. In the past used to use only one or two words and had a very hard time saying full sentences. At the time of the was able to say full sentences. At the time of the impartial hearing ST was speaking in sentences spontaneously, but inconsistently ( 165, 191-192).
understands English and can follow directions in English. She understands English letters but she cannot converse in English at all. is most conversant in Yiddish and Yiddish is the primary language spoken and is the language used by the teachers and related service providers ( 165-167, 191-193; TT: 246). wants “very much” for to be bilingual. At that time of the impartial was behind in Yiddish and “very much more behind in English,” especially speaking and writing (TT: 246). ’s class has two general education teachers, neither of whom are special education teachers or certified teachers (Litzman: 175, 184-185). The morning general education teacher is there from 9:30 a.m. to 12:30 p.m. uses only Yiddish. The afternoon teacher is there from 12:20 p.m. to 4:00 p.m. and she uses less Yiddish. When she teaches the “ABCs” she says the words in English and then always translates them into Yiddish. When she reads the beginning reading books in English she translates them into Yiddish or else the children do not understand. Ms. opined that at the time of the impartial hearing ST would not be able to learn in an English-speaking classroom in that it would “hinder her cognition” and her social development ( : 166, 169-170, 175, 190-191, 194-195).
Behaviorally, ST is “doing better” but is still a “work in progress” and she still can be inconsistent from one day to the next ( : 159). ST is also not yet where she is supposed to be socially ( 161). For example, ST still gets overwhelmed and anxious in a large group and is very resistant to joining the group, both in and out of the classroom ( 161-162). Many days will still sit on the side of the group. One of the behavior programs initiated provides with an item that she prefers as a reinforcer and it has resulted in some progress in that it motivates her to want to be part of the classroom and join in the class ( : 163). The SEITs have also set up a sensory integration program to address ST’s anxiety ( 163).
During the 2013-2014 school year Ms. is contact parents by telephone one to three times a week, sometimes more. She sees the classroom teacher whenever she is in class and she speaks general education teacher about least once or twice a week ( 169, 182; ” 217-219). Ms. has answered the teacher’s questions and she has helped the teacher solve some problems ( : 182). She has had a “clear meeting” with the teacher times during this school year ( : 182-183). She has met with teachers about ten times on how to implement the behavior programs that she developed for ( : 183-184).
’s SEITs and related service provides correspond with via a notebook, a behavior chart and notes with suggestions for activities to do topics to discuss with her (TT: 219-220). is in constant contact with s general education teachers. They “put a lot into” making progress ( 217). ST has improved in but has “a way to go” in her . Her progress in has not been as good; some ” and other days she sees no improvement at all (TT: 218-219). Socially, ” did not see a However, she has learned a lot in school and has made progress academically (TT: 219-220).
is currently receiving occupational therapy, physical therapy and speech therapy through the Department of Education but did not know whether that was pursuant to pendency. believed that if she does not prevail at the impartial hearing ST would continue to receive those services because they are on her IEP (TT: 247). ST receives t school at a center near her home. If the Department of Education did not pay for those services TT would have to do so because could “not survive” without the services (TT: 248).
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 a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.
I begin by noting that unless otherwise stated below I credit the testimony of all of the witnesses who appeared at the hearing. This Decision and Order is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record, and it addresses the IEP developed on May 21, 2013 and the FNR dated July 12, 2013 (DOE Exs. 3, 7). I. The Department of Education failed to provide ST 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 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).
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. The CSE team at the May 21, 2013 IEP meeting was not duly constituted.
Under prevailing federal and state law the CSE must include “at least one” regular education teacher of the student whenever the student is, or may be, participating in a regular education environment. 20 U.S.C. §1414(d)(1)(B)(ii); 8 N.Y.C. R. R. §200.3(a)(2)(c)(ii); R.G. v. New York City Dept. of Educ., 62 IDELR 84 (E.D.N.Y. Oct. 25, 2013) (IHO Ex. 2 at 11).[8] The CSE must also include “not less than one of the student’s special education teachers or, if appropriate, not less than one special education provider of the student. 20 U.S.C. §1414(d)(1)(B)(iii); 8 N.Y.C. R. R. §200.3(a)(2)(c)(ii). In New York parents are entitled to request that a parent member attend the IEP meeting and they must be notified of the right to do so.
At that time of the IEP meeting in May was in a general education class at her preschool. Thus, her general education teacher was a mandated member of the IEP team. However, as Mr. testified at the hearing, no general education teacher was included on the IEP team and thus the team was not duly : 35). Had s general education teacher been present and reviewed the documents provided for the IEP meeting and heard the concerns expressed by that teacher would have provided valuable insight as to whether a general education program with supports would have been able to meet specific special education needs. This omission, by itself, constituted a significant statutory and procedural violation that impeded s right to a FAPE. R.G., 62 IDELR 84, IHO Ex. 2 at 12-14.
Similarly, the Department of Education’s failure to include a special education teacher or a related service provider who knew ST also constituted a procedural violation that impeded ’s right to a FAPE. As noted above, at the time of the IEP meeting ST was receiving 20 hours of SEIT services at her preschool as well as the related services of speech and language therapy, occupational therapy and physical therapy. Thus, the CSE was required to include at least one of those special education teachers or providers at the IEP meeting. However, none of s SEIT providers or any of her related service providers was present. In fact, the only participant at either of the two meetings who knew ST was TT, her mother.
The CSE was required to inform TT that she may invite individuals to the IEP meeting “who have knowledge or special expertise” about ST to participate in the IEP meeting. 34 C.F.R. §300.322(b)(1)(ii); 8 N.Y.C.R.R. 200.3(b)(2)(vii); R.G., 62 IDELR 84, IHO Ex. 2 at 15. The CSE was also required to of her right to request that a parent member present at the IEP meeting. There was no testimony or evidence to support a conclusion that was notified of these rights or, in fact, that she was apprised of her due process rights at all. Indeed, Mr. testified that no one apprised of her due process rights at either the March or May meetings and there was no evidence that anyone else had notified her of these rights.
While Mr. acknowledged that none of s teachers or providers participated in the IEP meeting, he testified that he did not know who was providing the special education services to and that he “believe(d)” the CSE had tried to call OMNI ( : 35-36), the related service provider agency that employs ST’s SEITs ( 35-36). There is no evidence that either the CPSE, the CSE or Mr. asked who s special education providers were. Had that question been posed to the CSE could have ensured that the required members were present.
The absence of the required members at the IEP meeting and the resulting circumstance that there was no one at the meeting who could provide any information at all about s performance in school was particularly egregious here since, as Mr. testified, the documents available for review at the IEP meeting were outdated ( 48, 59, 82). Specifically, the Progress Reports reviewed by Mr. were dated April 27, 2012 and May 31, 2012, ten and eleven months prior to the IEP meeting 48; DOE Exs. 2). Moreover, the Department of Education did not conduct a classroom observation, which, as Mr. testified, would have been “very valuable” in that it would have provided the IEP team with a “firsthand look as to how ( was developing” and how any documented behaviors were impacting on her functioning in a classroom environment ( : 45-46).
For the reasons stated above I find that the procedural violations in the development of the IEP right to a FAPE for the 2013-2014 school year and deprived her of educational benefits.[9]
B. The IEP team did not have sufficient information to determine that an FBA was not required in this case. Based on the evidence at the impartial hearing the IEP team should have conducted an FBA and developed a BIP or it should have developed appropriate goals to address the behaviors that interfered with learning.
Mr. who never met testified that no FBA was conducted for two reasons, namely that to her and were not the sort of behaviors that could be changed and because there was no time to conduct an FBA ( 42, 60, 62-63).
State procedures require the CSE to consider strategies in the case of a student whose behavior impedes his or her learning that may require having an FBA conducted and a BIP developed for a student. 8 NYCRR 200.4(d)(3((i), 200.22(a)(b). The absence of an appropriate FBA and/or BIP might not result in a denial of FAPE if the CSE addressed the student's interfering behaviors and created an IEP based upon information provided by the student's teachers, providers, parents and a classroom observation conducted by the district. See R.E., 694 F.3d at 190-91; T.Y. v. New York City Dept. of Educ., 584 F.3d 412, 419 (2d Cir. 2009); Application of a Student with a Disability, Appeal No. 12-213.
At the outset, since the CSE did not include any or providers or any timely documents about , and since the Department of Education did not conduct a classroom observation, there was no relevant information at the IEP meeting from which Mr. Danzinger could have determined whether an FBA was necessary or from which any relevant behavior goals could have been developed for ST.
In any event, at the impartial hearing, Ms. , ’s lead SEIT during the 2012-2013 school year, testified that would “absolutely not” be able to function in school and progress without a behavior intervention plan on her IEP ( 196-198). She explained that she takes data for an “ABC assessment,” which is an “action, behavior, consequence” chart that shows what is taking place before and after a particular behavior and that the assessment helps her develop behavior programs : 187). She testified that these programs are necessary in order for to reach her social goals and address her anxiety ( 148, 177-178, 185-188). Since Ms. actually knew the child well and worked with her at the time the IEP was developed, I credit her testimony that required a behavior plan to make educational progress and do not credit Mr. generalization that an FBA and a BIP were not required, basically because she is diagnosed with Autism.
As noted above, the failure to conduct an FBA and develop BIP may not, by itself, deprive a child of a FAPE if the CSE recognizes the behaviors and addresses them in the child’s IEP. Here, the IEP does not provide any strategies at all to address ST’s behaviors that impede her learning. The IEP notes that when it comes to her schedule,” that “changes are very difficult for her,” that she can become “very upset when her day does not go exactly has she had planned,” that she can “throw a fit” if things do not go her way, that she will often “tantrum” if a peer has a toy that she wants and that she exhibits behaviors “consistent with a (“ ”) (DOE Ex. 3 at 1-2). However, neither the Management Needs section of the IEP nor any of the goals provide strategies to address these behaviors or guidelines for the teacher to follow in order to address or reduce these behaviors. Nor are there any goals to address . In fact, under the section of the IEP that asks whether the student needs strategies, including supports and other strategies to address behaviors that impede the student’s learning or that of others, the box for “No” is checked off as is the box asking whether the student needs a behavioral intervention plan (DOE Ex. 3 at 3).
In light of the above I find that again, in this case the failure to ensure that there were participants at the IEP meeting who knew classroom performance and could explain in order to determine whether and FBA was appropriate, deprived ST of a FAPE. In any event, based on the testimony at the impartial hearing I find that the failure to conduct an FBA and develop a BIP deprived ST of a FAPE. Mr. testimony that there was no time to conduct an FBA does not excuse this omission.
C. The IEP was defective in that it failed to provide for a Yiddish speaking paraprofessional in the event that was placed in an interim monolingual English class.
The IEP recommended a bilingual Yiddish class and Mr. Danzinger told TT that such classes were available in the District. The IEP also indicated that if a bilingual Yiddish class was not available, could be placed in an English class on an interim basis (DOE Ex. 3 at 12). However, the IEP did not indicate that if had to attend a class in English that she would be provided with a Yiddish speaking paraprofessional. Since the evidence demonstrated most conversant in Yiddish and that time of the impartial hearing ST was “behind” in Yiddish and “very much more behind in English,” especially speaking and writing (TT: 246), the absence of a Yiddish speaking paraprofessional on the IEP in the event that to attend an monolingual class is a fatal flaw in the IEP.
Mr. s testimony that if the placement office did not have bilingual Yiddish placement, by default” it should “automatically” provide an interim Yiddish-speaking paraprofessional ( : 69-70), does not cure this flaw in the IEP. At the outset, such testimony is retrospective in that it offers information that was not reasonably known to the parent when they made their decision about the appropriateness of program 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). Moreover, Ms. Renny, the principal of P.S. 16. testified that there were no bilingual Yiddish classes in the school and that if a Yiddish paraprofessional was not included in the IEP she would not have been able to provide one : 132-133).
For this reason, too, the IEP failed to provide ST with a FAPE.
D. The CSE improperly failed to consider a mainstream program and the 12:1:1 program recommended in the IEP was not the LRE for ST.
At the time of the IEP meeting on May 21, 2013 IEP ST was attending a general education class with 20 hours of SEIT services and the related services of occupational therapy, physical . After the meeting, at was the only person who knew at which there was no general education teacher or special education teacher or provider who knew ST, the CSE recommended in a community school with related services.
The IDEA mandates that “(t) o the maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. §1412(a)(5)(A); P. Ex. Rel. Mr. and Mrs. P. v. Newington Board of Education, 546 F.3d 111, 120 (2d Cir. 2008). The IDEA has a “strong preference for children with disabilities to be educated ‘to the maximum extent appropriate’ together with their non-disabled peers.” Id. citing Walzak v. Fla. Union Free School District, 142 F.3d 119, 122 (2d Cir. 1998). The presumption in favor of mainstreaming must be weighed, on a case by case basis and “where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate.” Briggs v. Board of Education of Conn., 882 F.2d 688, 692 (2d Cir. 1989; Newington, 546 F. 3d at 119.
The Second Circuit enunciated a two-pronged test to determine whether a particular placement is the LRE for a child. (1) It must be determined whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child and (2) if not, whether the “school has mainstreamed the child to the maximum extent possible. Newington, 546 F.3d at 120 citing Daniel RR v. State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989). In considering the first prong of this analysis a court must consider several factors, including: a) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; b) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and c) the possible negative effects of the inclusion of the child on the education of the other students in the class. Newington, 546 F.3d at 120; Oberti v. Clementon School District, 995 F.2d 1204, 1215, 1217-1218 (3d Cir. 1993). See R.G., 62 IDELR 84, IHO Ex. 2 at 11-12.
With respect to the first prong of the test, there is no evidence at all that the District made reasonable efforts to accommodate in a regular classroom. The IEP indicates that the only programs considered for which was deemed to be too restrictive for and the class that was recommended (DOE Ex. 3 at 12). Thus, there is no evidence that the CSE considered whether a general education class with “supplemental aids and services,” namely a SEIT or SETSS provider, would have been able to provide ST with an educational benefit. There is also no evidence that the CSE had before it reports regarding from which it might have sufficiently considered whether a general education environment would have been appropriate” for ST. Specifically, as previously noted, Mr. . testified that the documents he reviewed for the IEP meeting were outdated. The IEP meeting took place on May 21, 2013, the Progress Reports were dated May 31, 2012 and December 26, 2012, there was no classroom observation conducted and, as noted repeatedly throughout this discussion, no general education teacher, special education teacher or related service provider who participated in the IEP meeting.
The testimony by Ms. support a finding that cognitively, was able to keep up with the mainstream students in her class and that with the assistance of the SEIT, a “supplemental service,” and her related services clearly receiving an educational benefit in the general education class and also a social benefit, as she had mainstream students as role models. The failure of the CSE to consider a mainstream class with supplementary aids and services “compels the conclusion that the CSE did not give fair consideration to a mainstream placement.” R.G., 62 IDELR 84, IHO Ex. 2 at 13
For this reason, too, ST was deprived of a FAPE.
E. The recommended placement on the FNR - - P.S. 16 - - was not appropriate for ST.
At the outset, for the reasons stated in “D” above the Department of Education did not meet its burden of demonstrating recommended on the IEP was the LRE for ST at the time the IEP was developed and thus it cannot demonstrate that the 12:1:1 class at that was recommended for was the LRE for her at that time.
In any event, the testimony by , the principal of the school, established that the class at the school could not meet special education needs. In particular, there were no Yiddish speaking teachers or paraprofessionals in the school and the class ST would have attended had no Yiddish speaking students. Ms. testified that while, under that circumstances she would have obtained a Yiddish speaking paraprofessional for ST, she could not do so unless it was mandated on the IEP. As noted earlier, the May 21, 2013 IEP did not include a Yiddish speaking paraprofessional in the event that would have to be placed in a monolingual class on an “interim” basis. Ms. also made clear that placement in the class would not be “interim” at all. Rather, that would have been her placement for the entire 2013-2014 school year. It was clear from the evidence that attendance in a monolingual class without the assistance of a Yiddish speaking paraprofessional would have been inappropriate since s primary language is Yiddish and, while she understands English, she was not able to communicate in that language.
Thus, even if a had been an appropriate program it was not, the Department of Education failed to meet its burden of demonstrating that the proposed placement would have met educational needs and provided her with an educational benefit.
***
For the reasons explained above I find that the Department of Education failed to meet its burden of demonstrating that it provided ST with a FAPE for the 2013-2014 school year. II. The equities of the case favor the parent, who is entitled to an appropriate remedy for the Department of Education’s failure to provide with a FAPE.
In this case as independently a private and she is not asking for tuition reimbursement. Rather, she is asking that the Department of Education be required to provide of 20 hours of ABA/SEIT or ABA/SETSS in Yiddish and the related services of two 30-minute session s of individual speech and language therapy in Yiddish, three 30-minute sessions of individual occupational therapy and two 30-minute individual sessions of physical therapy, as per the services being provided pursuant to the Order of Pendency.
An impartial hearing officer is authorized to grant such relief as he or she deems appropriate and equitable considerations are relevant in fashioning a remedy. 20 U.S.C. 1415(i)(2)(C)(iii); R.G. v. New York City Dept. of Educ., 62 IDELR 84, IHO Ex. 2 at 12-14; See Forest Grove School Dist.v. T.A. 557 U.S. 230 (2009) at n.11.
A. Equities
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 parent. While the Department of Education argued that for various reasons the parent failed to cooperate with the CSE (Hearing: 263-264), I find that the evidence establishes , in fact, cooperate with the Department of Education throughout the CSE process for the 2013-2014 school year.
In particular the IESP meeting on March 7, 2013. Due to circumstance, TT brought ST with her to the meeting. offered and signed the IESP, it was not until she received an email copy of the IESP at home that she realized it did not provide for special education services (TT: 202). I find in this regard was not disingenuous. Indeed, it was clear throughout the impartial hearing about the difference between an IESP and an IEP and that she was not clear about the designations of the12:1:1, 12:1 and 6:1:1 programs referenced in both the IESP and IEP, and whether those programs were actually recommended for ST (TT: 202, 213-214, 222, 225; DOE Ex. 3 at 7, 13; DOE Ex. 5 at 2).
Moreover, while the Department of Education asserted that TT did not respond to In addition, after the meeting she was proactive in finding out the recommended placement as she called the CSE and visited speaking to Ms. before even receiving an
FNR. At the hearing she explained how she she met with at the school and she related the questions that she asked the teacher visited immediately after receiving an FNR for that school and also made relevant inquiries on her visit notified the CSE that she believed both placements were inappropriate
In light of the above I find that the equities of the case do not preclude a remedy for the Department of Education’s failure to provide ST with a FAPE.
B. Remedy
As noted above, ST is currently receiving the services provided in her March 19, 2013 Final Notice of Recommendation/Modification of IEP pursuant to pendency at Department of Education expense (Parent’s Ex. C). The Department of Education is required to continue paying for these services until there is a final decision in this case. Thus, the parent has not incurred any costs for the services and reimbursement is not an issue at this hearing.
I find that the appropriate remedy for the deficiencies in the IEP detailed above that deprived ST of a FAPE, is to remand the case to the CSE to conduct another IEP meeting that complies with the procedural requirements of the IDEA and the New York Education Law, including but not limited to, the following: 1) Prior to the meeting the Department of Education is to conduct a classroom observation and collect and review documents that reflect ST’s current performance, including evaluations conducted within the last three years, and any other documents relevant to determine an appropriate program for ST in the LRE; 2) her right to include participants who have “knowledge or special expertise regarding” should ensure that all of the participants required by law to attend the meeting are present; 3) be advised of her right to a parent member and must either waive that right or a parent member must be present at the IEP meeting. Based on the timely and complete information acquired by the CSE the duly constituted IEP team is to determine the appropriate
In the interim, the Department of Education shall continue to provide ST with the services she is receiving pursuant to pendency. See R.G., 64 I.D.E.L.R. at 84, IHO Ex. 2 at 14-15.
ORDER
In light of the above findings of fact, it is hereby Ordered that:
1).The case is remanded to the CSE to conduct another IEP meeting that complies with the procedural requirements of the IDEA and the New York Education Law, including but not limited to, the following:
a) Prior to the meeting the Department of Education is to conduct a classroom observation and collect and review documents that reflect ST’s current performance, including evaluations conducted within the last three years and any other documents relevant to determine an appropriate program for ST in the LRE;
b) is to be advised of her right to include participants who have “knowledge or special expertise regarding” and the CSE should ensure that all of the participants required by law to attend the meeting are present;
c) must also be advised of her right to have a parent member attend the IEP meeting and must either waive that right or a parent member must be present at the IEP meeting; and
d) Based on the timely and complete information acquired by the CSE the duly constituted IEP team is to determine the appropriate program for
2) Within 15 days of the receipt of this Decision and Order the CSE is to make arrangements for a classroom observation and any appropriate evaluations and is to obtain documents from , her SEITs and her related service providers to be used in the development of the new IEP.
3). The CSE must convene within 30 days of the receipt of this Decision and Order to develop an IEP in accordance with this Order.
4). In the interim, the Department of Education shall continue to provide with the services she is receiving pursuant to pendency.
Dated: May 23, 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 Event Page for undated, 2 pages
Exhibit 2 Student Progress Report dated May
31, 2012, 9 pages
Exhibit 3 Individualized Education Program
dated May 21, 2013, 14 pages
Exhibit 4 Final Notice of Recommendation
dated March 7, 2013, 1 page
Exhibit 5 Individualized Education Services
Program dated March 7, 2013, 10
pages
Exhibit 6 Omni Updated Educational Progress
Report dated December 26, 2012, 4
pages
Exhibit 7 Final Notice of Recommendation
dated July 12, 2013, 1 page
Parent:
Exhibit A Parent’s Impartial Hearing Request
dated September 24, 2013, 4 pages
Exhibit B Student Information Summary dated
March 19, 2013, 1 page
Exhibit C Final Notice of Recommendation
Modification of IEP dated March 19,
2013
Hearing Officer
Exhibit I Extension Documents various dates,
8 pages
Exhibit II R.G. v. New York City Department
of Education, 62 I.D.E.L.R. 84
(E.D.N.Y. Oct. 25, 2013), 16 pages
Footnotes
[1] The IESP developed at this meeting is not the document at issue in this case. However, this summary of the testimony and evidence related to that meeting is included for background and because it refers to information relevant to the subsequent May 21, 2013 IEP meeting that is at issue here.
[3] The child with the emotional disturbance classification is no longer in that : 97-98, 117). Citations to pages 114-130 and 133-134 refer to Ms. ’s cross-examination of Ms.
[6] Citations to pages 172-195 refer to Ms. ’s cross-examination of Ms.
[7] There are three other SEITs who work with ST. Ms. believed that they are all certified special education teachers ( : 147, 176).
[8] The IDELR citation does not have page numbers and so I am including a printout of the case as IHO Ex. 3 and referencing the case pages to the pages of the Exhibit.
[9] The parent’s Due Process Complaint also alleged that ST’s social issues were not adequately addressed in the IEP (Parent’s Ext.). I find that the two goals on the IEP that relate to social skills -- will “improve her ability to use sensory information to interact with people and objects in school and home” and that she will “increase her social skills by initiating play, conversations and positive peer interaction/friendships (DOE Ex. 3 at 4, 6) -- sufficiently pinpoint the issues relating to ST’s social difficulties.